[Congressional Record Volume 162, Number 176 (Wednesday, December 7, 2016)]
[Senate]
[Pages S6833-S6835]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FEDERAL RULE OF CRIMINAL PROCEDURE 41

  Mr. CORNYN. Mr. President, I ask unanimous consent that the following 
letters from law enforcement groups be printed in the Record in support 
of the recent changes to Federal Rule of Criminal Procedure 41 that was 
the subject of debate on the floor of the Senate on November 30, 2016: 
a December 6, 2016, letter signed by the Association of State Criminal 
Investigative Agencies, the International Association of Chiefs of 
Police, the Major Cities Chiefs Association, the National District 
Attorneys Association, the National Sheriffs' Association, and the 
Sergeant's Benevolent Association NYPD; a December 5, 2016, letter 
signed by the Federal Law Enforcement Officers Association; a December 
5, 2016, letter signed by the Federal Bureau of Investigation Agents 
Association; a December 5, 2016, letter signed by the National 
Fraternal Order of Police; and, a December 5, 2016, letter signed by 
the National Association to Protect Children.

                                                 December 6, 2016.
     Re: Rule 41 Changes.

     Hon. Chuck Grassley,
     Chairman
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate 
         Washington, DC.
       Dear Chairman Grassley and Ranking Member Leahy: We write 
     in support of changes to Rule 41 of the Federal Rules of 
     Criminal Procedure that improve the ability of law 
     enforcement to obtain evidence despite efforts by criminals 
     to hide behind technology. The changes encourage judicial 
     oversight of complex online investigations and give 
     investigators a clear roadmap to seek authorization for their 
     techniques.
       Rule 41 improvements help solve a simple conundrum for law 
     enforcement: if you don't know where a computer is located 
     that is being used to commit a crime, how do you know which 
     court to ask for a search warrant to find the computer? 
     Investigators sought these common-sense changes because they 
     needed court oversight and authorization to identify 
     criminals hiding behind

[[Page S6834]]

     technological barriers, not because they wanted to avoid 
     oversight.
       Rule 41 only governs cases where investigators are seeking 
     a search warrant issued by a neutral magistrate based upon 
     probable cause, particularly describing the place to be 
     searched and the persons or things to be seized. If these 
     changes are not made, then criminals could hide behind 
     anonymizing services with impunity, knowing that law 
     enforcement could never lawfully figure out which court had 
     jurisdiction over them.
       The stated goal of several legislative reforms addressing 
     law enforcement access to digital evidence is to modernize 
     the law to accommodate changing technology, preserving law 
     enforcement access while protecting privacy. Ensuring that 
     law enforcement can access evidence it needs with appropriate 
     judicial oversight is precisely what these Rule 41 changes 
     will do.
           Sincerely,
     Association of State Criminal Investigative Agencies,
     International Association of Chiefs of Police,
     Major Cities Chiefs Association,
     Major County Sheriffs' Association,
     National Association of Police Organizations,
     National District Attorneys Association National Sheriffs' 
     Association,
     National Sheriffs' Association,
     Sergeant's Benevolent Association NYPD.
                                  ____

                     Federal Law Enforcement Officers Association,
                                 Washington, DC, December 5, 2016.
     Re: Rule 41 Amendments.

     Hon. Mitch McConnell,
     Majority Leader, U.S. Senate, U.S. Capitol, Washington, DC,
     Hon. Charles E. Grassley,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate,
     Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Senators: On behalf of the Federal Law Enforcement 
     Officers Association (FLEOA)--the nation's largest 
     professional, non-profit association representing over 26,000 
     federal law enforcement officers from 65 agencies--I am 
     writing to express our strong support for the recently 
     implemented amendments to Rule 41 of the Federal Rules of 
     Criminal Procedure. These amendments will enhance and improve 
     the ability for law enforcement officials to investigate and 
     prosecute terrorists, transnational child pornographers, and 
     cyber criminals who use computer networks to conceal their 
     physical location.
       FLEOA shares the same opinion of the Federal Bureau of 
     Investigation Agent's Association (FBIAA), the National 
     Association of Assistant United States Attorneys (NAAUSA) and 
     the National Association to Protect Children. We all agree 
     that the Rule 41 amendments are necessary to address 
     investigative hindrances that result from the difficulty of 
     identifying the exact location of a computer when seeking a 
     warrant. Terrorists and criminals frequently use complex 
     computer networks, spread across the country and the world to 
     anonymize communications, but the previous version of Rule 41 
     only allowed magistrate judges to issue warrants for evidence 
     within their jurisdictions. This situation created ambiguity 
     and significant burdens for investigators allowing 
     transnational sexual predators and cyber criminals anonymity.
       The Rule 41 amendments resolve the uncertainty surrounding 
     the warrant process by establishing a court-supervised 
     framework for conducting investigations that will protect the 
     privacy interests of the public. FLEOA believes these 
     changes, which took effect on December 1, 2016 are reasonable 
     and necessary.
           Respectively,
                                                    Nathan Catura,
     FLEOA National President.
                                  ____

                                   Federal Bureau of Investigation


                                           Agents Association,

                                 Alexandria, VA, December 5, 2016.
     Re: Rule 41 Amendments.

     Hon. Mitch McConnell,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Charles E. Grassley,
     Chairman, Senate Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senators: On behalf of the FBI Agents Association 
     (``FBIAA''), a voluntary professional association currently 
     representing over 13,000 active duty and retired FBI Special 
     Agents, I write to express our support for the recently 
     implemented amendments to Rule 41 of the Federal Rules of 
     Criminal Procedure (``Rule 41''). These amendments will 
     enhance the ability for law enforcement officials to 
     investigate and prosecute criminals, such as terrorists and 
     child pornographers, who use computer networks to disguise 
     their physical location.
       The FBIAA shares the opinion of FBI Director Comey and the 
     Department of Justice that the narrow changes included in the 
     Rule 41 amendments are necessary to address investigative 
     obstacles that result from the difficulty of identifying the 
     specific location of a computer when seeking a warrant. 
     Criminals frequently use complex computer networks spread 
     across the country and the world to anonymize their 
     communications, but the previous version of Rule 41 only 
     allowed magistrate judges to issue warrants for evidence 
     within their jurisdictions. This situation created 
     uncertainty and significant administrative burdens for 
     investigators, and as Director Comey noted earlier this year, 
     the previous iteration of Rule 41 created problems ``for some 
     of our most important investigations.''
       The Rule 41 amendments resolve the uncertainty surrounding 
     the warrant process by establishing a court-supervised 
     framework for conducting investigations that will protect the 
     privacy interests of the public. The FBIAA believes these 
     changes, which took effect on December 1, 2016, are 
     reasonable and necessary.
       The FBIAA is pleased that the Senate did not interfere with 
     the implementation of the Rule 41 amendments, and we look 
     forward to continuing our work with Congress on these 
     important issues.
       If you have any questions, please contact me, FBIAA General 
     Counsel Dee Martin, [email protected], and Joshua 
     Zive, [email protected].
           Sincerely,
                                                  Thomas O'Connor,
     President.
                                  ____

                                                National Fraternal


                                              Order of Police,

                                 Washington, DC, December 5, 2016.
     Hon. Charles E. Grassley,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman and Senator Leahy, I am writing on behalf 
     of the members of the Fraternal Order of Police to advise you 
     of our strong and continued support for the changes to Rule 
     41 of the Federal Rules of Criminal Procedure made by the 
     U.S. Department of Justice.
       The FOP supports these changes and we believe they will 
     benefit law enforcement officers conducting online 
     investigations. These changes will ensure that Federal agents 
     know which judge to go to in order to apply for a warrant 
     when the cybercriminals they are investigating have hidden 
     their location through anonymizing technology. This search 
     warrant will help law enforcement discover where these 
     criminals are located and end their illicit activity.
       Law enforcement officers are now able to obtain warrants 
     from a single judge instead of multiple applications in many 
     jurisdictions to obtain the same information. This will help 
     speed up investigations into crimes like computer hacking, 
     where offenders unlawfully access computers remotely and 
     cross jurisdictional boundaries.
       On behalf of the more than 330,000 members of the Fraternal 
     Order of Police, I want to thank you for your consistent 
     strong support for the men and women of law enforcement 
     throughout this country. I look forward to working with you 
     and your staff on this issue. If I can be of any additional 
     help in this matter, please do not hesitate to contact me or 
     Executive Director Jim Pasco in my Washington office.
           Sincerely,
                                                 Chuck Canterbury,
     National President.
                                  ____

                                           National Association to


                                             Protect Children,

                                  Knoxville, TN, December 5, 2016.
     Hon. John Cornyn:
     U.S. Senate, Majority Whip, Chair, Judiciary Subcommittee on 
         The Constitution, Washington, DC.
       Dear Senator Cornyn, We are writing you in support of the 
     amendment to the Federal Rules of Criminal Procedure, Rule 
     41. It has been with great concern over the last decade that 
     we have watched as child sexual predators take advantage of 
     new technologies, including ways to hide their exploitation 
     of children through the use of proxies, anonymizers and 
     encryption.
       The internet was not created to give technologically savvy 
     offenders an advantage in obfuscating their crimes, and 
     offenders who participate in the global demand for the rape 
     and torture of children should not be rewarded for being good 
     at hiding.
       Make no mistake, the offenders who take advantage of the 
     ``dark web'' are some of the most dangerous offenders that 
     exist. For proof of this one need look no further than one of 
     the most notorious ICE cases in history, the recent 
     ``Operation Delego''. This transnational child exploitation 
     case involved between 600-900 of the worst offenders ICE has 
     seen. It led to 72 indictments (of which 15 are for ``John 
     Doe'' warrants) and 57 arrests. This investigation uncovered 
     a private bulletin board where hands on offenders produced 
     hardcore child rape imagery and shared it by utilizing 
     sophisticated proxies and encryption methods. The members 
     were segregated into groups, including a ``Super VIP'' 
     section and according to the ``Hawkeye

[[Page S6835]]

     Indictment'' provided by the US Department of Justice, ``The 
     rules controlling what could be posted in that section were 
     as follows:
       ``Keep the girls under 13, in fact, I really need to see 12 
     or younger to know your (sic) a brother''.
       and:
       ``It's very young kids, getting (expletive), and preteens 
     in distress and or crying, etc. . . Getting hit hard on the 
     ass, with a belt and so on . . . I can't believe some of you 
     guys can't work it out for yourselves? And ``pretend'' 
     bondage, ``pretend light whipping'' is not super hardcore. If 
     the girl looks total (sic) comfortable, she's not in 
     distress, it does NOT belong I (sic) this section (smiley 
     face icon)''.
       In another transnational child exploitation case 
     investigated by ICE dubbed ``Operation Round Table'', 
     Jonathon Johnson, a 27 year old predator from Louisiana, 
     operated a 27,000 member hidden service site on TOR for the 
     production and dissemination of child sexual abuse images. 
     Johnson created a ``honeypot'' site by stealing a young 
     woman's identity and pretending to be her. Not only did he 
     persuade over 251 child victims to provide him with sexually 
     explicit images and video but he was successful in convincing 
     some of his victims to sexually assault their younger 
     relatives on camera for him, some of whom were under the age 
     of 3.
       We applaud Congress and the US Supreme Court for providing 
     this amendment to rule 41, which can only be described as 
     long overdue.
       The internet has provided vexing challenges to today's law 
     enforcement efforts to protect children and for their sake 
     government must keep pace.
           With much gratitude,
     Camille Cooper,
       Director, Government Affairs, The National Association to 
     PROTECT Children & PROTECT.

                          ____________________