Regulatory Reform

Changes to the Federal Rules of Criminal Procedure Allows the FBI to Install Malware on Computers

Have you ever accidentally downloaded malware? Under proposed amendments to the Federal Rules of Criminal Procedure, the malware on your computer may provide the Federal Bureau of Investigation the justification it needs to load its own surveillance software onto your computer, without notifying you.

The FBI may be able to obtain warrants from any federal district court to search any computer in the United States. Once a warrant is issued, it can load its own software onto a target computer, copy files found on the computer, and wait to notify the target until after the search is complete.

The government is trying to update the Rules to provide for “remote access” warrants. The updates would allow the FBI to download its surveillance software onto a computer “to search electronic storage media and seize or copy electronically stored information.” [1]

The proposed amendments would also allow the FBI to notify the target of a search after it conducts the search rather than before its starts the search. The FBI need only “make reasonable efforts to serve a copy of the warrant on the person whose property was searched or whose information was seized or copied.” [2]

Under a third proposed change, any federal magistrate judge could issue a “remote access” warrant if “activities related to a crime may have occurred” in his or her district. [3] According to the official comments, this provision authorizes the magistrate judge “to issue a warrant… within or outside that district when the district in which the [computer] is located is not known because of the use of technology….” [4]

The logic in the official comment is a non sequitur. Computers, cell phones, tablets and other electronic storage devices represent technology. It is possible the mere use of computers as a form of technology could provide self-validating grounds for a magistrate in an otherwise unrelated district to issue a “remote access” warrant. If this is true, what about warrants to download the malware on connected cars—cars with wireless access? What about warrants to search “connected” homes, with refrigerators, televisions or dishwashers using wireless connections? [5]

According to the current rules, the FBI must provide the target of a “remote access” search with a copy of the warrant at the time it starts the search. If the proposed rule changes are approved, the FBI would no longer need to notify targets before its malware is loaded and activated. Even then, the FBI would only have to exercise “reasonable efforts” to serve the warrant after the search is complete.

The FBI’s surveillance software can do so much more than copy files. It “can covertly download files, photographs and stored emails, or even gather real-time images by activating cameras connected to computers.” [6]

The proposed changes to the Federal Rules of Criminal Procedure fly in the face of the Fourth Amendment, and Supreme Court cases applying it to investigations. The Fourth Amendment to the Constitution provides

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched…[7]

In four recent decisions [8] the Supreme Court found the warrantless tracking of a vehicle and searches of suspects’ cell phones to be unconstitutional searches, and determined GPS monitoring of repeat offenders to be a search.

The Supreme Court also determined police use of a drug sniffing dog was an unconstitutional search when the police led the dog onto a person’s porch. [9]

The rule changes would essentially allow the FBI to place an agent inside your house just because it witnessed a suspected drug dealer dropping off a package at your door, regardless of whether the package contained drugs, was intended for you or even if it was left at your door when intended for your neighbor. If the rule changes impacted on location searches of houses, the Supreme Court would certainly throw out the rules.

Expanding the jurisdiction of a federal magistrate beyond his or her district, allowing the FBI to abrogate Fourth Amendment notice and proximity requirements run counter to current Supreme Court decisions. They should concern any citizen who uses any form of technology for work or play. Any accidental download of malware, or other suspect content, could provide the FBI the justification it needs to access the contents of your personal computer.



[1] “Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure” Committee on the Rules of Practice and Procedure of the Judicial Conference of the United States, August 2014; Proposed changes to F.R.Crim.Pr. 41(f)(1)(C)

[2] Ibid.

[3] Ibid; Proposed changes to F.R.Crim.Pr. 41(b)(6).

[4] Ibid; Official Comments to proposed change to F.R.Crim.Pro. 41(b)(6)

[5] E.g.

[6] Knibbs, Kate “The FBI Has its Own Secret Brand of Malware”, Gizmodo, April 2, 2015; available at ___

[7] U.S. Const. Amend. IV

[8] Jones v. United States; Riley v. California; Grady v. North Carolina

[9] Florida v. Jardines

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