Google has objected to a proposed amendment to Rule 41 of the U.S. Criminal Code which it believes would give law enforcing officials the ability to perform overseas hacking of computers. Moreover, the change would also allow courts to approve search warrants that go beyond their jurisdictions.

Google has further warned that the new program of the Justice Department would add more flexibility in the judges' approval of search warrants involving electronic data. In other words, the department will be able to remotely access millions of computers which Google described as akin to "legal spying."

"The serious and complex constitutional concerns implicated by the proposed amendment are numerous and, because of the nature of Fourth Amendment case law development, are unlikely to be addressed by courts in a timely fashion," wrote Richard Salgado, Google's director for law enforcement and information security. He added that the department's plans to access computer data in a remote fashion "raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide."

Conducting search warrants is becoming more and more complex and difficult to perform as caused by the presence of modern computer networks. There is also the reality that a computer's geographical detail can now be easily disguised. With this in mind, the FBI wanted an amendment to Rule 41 and asked the Judicial Conference Advisory Committee to change the way judges issue warrants. If approved, judges would be allowed to approve search warrants of computers from whatever location which include those in foreign countries.

The Justice Department explained that the amendment is simply a way to modernize Rule 41, allowing it to keep up with the Internet age.

"The proposal would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law," said Deputy Assistant Attorney General David Bitkower. He added that critics of the amendment "appear to be misreading the text of the proposal or misunderstanding current law."

Google further argued that expanding the government's authority in conducting investigation and the needed technological tools are up to the Congress to decide.

"Legislation, not rule-making, is the proper way to balance legitimate law enforcement needs with serious constitutional and policy considerations," added Salgado. This is the reason why Google wanted the committee to "leave the expansion of the government's investigative and technological tools, if any are necessary, to Congress."

The proposed amendment shall be reviewed by the Congress and the Supreme Court. The decision on possibly amending Rule 41 is expected to be made in the next couple of months.

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