Proposed amendment to F.R.Crim.P. 41(e)(2); comment due Feb. 15

The Federal Rules Committee has proposed a new F. R. Crim. P. 41(e)(2)(B) on search warrants for electronically stored evidence, here, page 24. The comment period closes February 15, 2008, and the new rule would not be effective until December 1, 2008, at the earliest. The new rule will read as follows:

Warrant to Search for Electronically Stored Information. A warrant may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes later review of the storage media or electronically stored information consistent with the warrant. The time for the executing of the warrant in Rule 41(e) and (f) refers to the seizing or onsite copying of the storage media or electronically stored information, and not to any later review.

Comment: This is a sensible amendment that adopts the prevailing practice and case law and it removes ambiguities in warrants often litigated later, but without success. Numerous cases have challenged the later review of evidence already seized under a warrant and seldom has a court held that it could not be done under the original warrant. Also, copying of electronic information can be less intrusive than seizing the computers because the information can be copied and taken without putting the person whose records were seized out of business. Also, overbreadth issues are not lost for later litigation.