[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
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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.
____________________