Earlier today, Sen. Ron Wyden released the text of his legislation to forestall the impending changes to Rule 41 of federal criminal procedures. The bill has already accumulated Sens. Rand Paul, Steve Daines, Tammy Baldwin, and Jon Tester as cosponsors. Writing in Medium, Wyden lays out the concerns with these proposed changes, echoing similar concerns I discussed in a previous post. Those concerns have not changed.
This is not a mere procedural change to the rules governing criminal procedures. This is a substantive, and nigh unprecedented, expansion of the government’s warrant-issuing authority. If the changes approved by the Supreme Court to Rule 41 go into effect, it will be the equivalent of granting the state power to issue a general warrant for the digital age.
In addition to the concerns relating to surveillance, the implications of this rule change could extend across the Atlantic. The Privacy Shield—a cross-border data flow agreement between the European Union and United States currently under negotiation—was unveiled to a lukewarm response from European nations. Dumping this expansive authority on top of the ongoing negotiations could be enough to torpedo the potential agreement. A recent European working group review has already made it apparent that it has “strong concerns on both the commercial aspects and the access by public authorities to data transferred under the Privacy Shield.”
The changes proposed to Rule 41 would therefore have the likely unintended consequence of enabling, and possibly expanding, surveillance domestically, while invalidating international agreements on cross-border data flows. Economic innovation and growth, as well as civil liberties, are likely to be the first casualties of these changes.
Congress now has until December 1 to decide whether it will invalidate or amend these changes. In an age dominated by a willing abrogation of its Article I authorities under the Constitution, Congress has an opportunity to take proactive steps in protecting the American public against the specter of general warrants for digital communications. Our civil liberties and economic vitality depend on Congress asserting its authority on this issue.