Google used loaded language on Wednesday to warn that a Justice Department proposal will make it easier for U.S. law enforcement to reach into remote computers, and that it could upset diplomatic relations with other countries.
“[The change] could have profound implications for the privacy rights and security interests of everyone who uses the Internet,” Richard Salgado, a Legal Director for Google, wrote in a blog post.
The issue at stake is how far a search warrant authorizing a computer search should reach. Currently, federal judges are typically restricted to issuing warrants that allow a search of computers and servers located in their district.
A proposed amendment, however, would let judges give law enforcement the right to conduct remote searches. The Justice Department said in the proposal that the current system is a strain for investigators and judges in cases where criminals use proxy IP addresses, or deploy computers across multiple jurisdictions:
“Because the target of the search has deliberately disguised the location of the media or information to be searched, the amendment allows a magistrate judge in a district in which activities related to a crime may have occurred “to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district,” said the Justice Department in a document describing the draft change (my emphasis).
Google, however, claimed that this could give U.S. enforcement extra-territorial legal power, and justify access to computers and devices worldwide. The company argued instead that the U.S. should rely on existing diplomatic conventions that call for companies to cooperate on criminal investigations.
“The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties … The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.”
The issue has also been a sore spot for Microsoft, which is running the risk of contempt of court proceedings as a result of a hardline position it is taking in a case before the Second Circuit of Appeals in New York. That case is about whether a U.S. search warrant obliges the company to hand over data stored on a server in Dublin, Ireland.
The warnings from Google and Microsoft are driven in part by self-interest. The companies are anxious to reassure overseas cloud computer customers, who are skittish about the Edward Snowden revelations, that their data will not be subject to U.S. jurisdiction.
The Justice Department, meanwhile, has suggested that imposing territorial limits on computer searches is unrealistic when anyone can store data anywhere.
The Google blog post comes at the close of a comment during which the Justice Department asked for comment on a variety of rule changes, including to “Rule 41” on search powers (the National Journal profiled Rule 41 in detail last year). A final version of the rule is still pending.