W ith the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules to permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of Justice's (DOJ's) desired use of the rule for digital searches. One facet of this problem arose in a 2013 magistrate judge's ruling from the Southern District of Texas, in which the court denied DOJ's application to conduct remote searches of a computer believed to have been part of a fraudulent scheme. The court declined to grant the DOJ's application because the government could not establish the location of the target, thereby placing the proposed search outside the scope of Rule 41 and in violation of the Fourth Amendment particularity requirement. There have been at least two lines of argument against the proposed rule change, one based on the substance of the proposed amendment and the other grounded in the process by which the rule is being changed. The substantive arguments pertain to the actual substance of the rule and include for example, an argument that the new rule would breach the particularity requirement of the Fourth Amendment. The procedural arguments concern how this potential authorization should be made law: through the rulemaking process by the courts or through enacted legislation by Congress. While federal law enforcement has been supportive of the proposed rule change, some advocacy groups have argued that the proposed change "would have significant legal and technical implications" and thus "merit[s] open consideration by Congress, rather than a rulemaking proceeding of the Judicial Conference." This report provides a brief overview of the proposed amendment to Rule 41. First, it sets out background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and surveys various concerns commenters have raised with the proposal. Rule 41 of the Federal Rules of Criminal Procedure governs the procedures for obtaining a search warrant in federal court. Among other elements, Rule 41 primarily requires a government official to demonstrate probable cause that evidence of a crime will be found in the place to be searched. As to the question of venue—that is, which is the appropriate federal district court to seek a search warrant—Rule 41 provides that a search warrant may be issued by "a magistrate judge with authority in the district." In a 2013 ruling from the Southern District of Texas, discussed below, the court found that although Rule 41 permits extraterritorial warrants (a warrant to be served outside of that judge's jurisdiction) in limited situations, the factual predicates to obtaining one were not present there. Rule 41 permits the issuance of extraterritorial warrants in four limited instances: (1) the property is within the jurisdiction but may be moved out of the jurisdiction before the warrant is executed; (2) the property is part of an investigation of domestic or international terrorism; (3) tracking devices are used which can be monitored outside the jurisdiction if installed within the jurisdiction; or (4) the property is located in a U.S. territory or U.S. diplomatic or consular mission. However, based on the text of the rule, none of these exceptions appear to permit searches where the location of the target is unknown, such that it is not clear in which jurisdiction to request a warrant. The amendment to Rule 41 approved by the Supreme Court and now before Congress would expand the instances in which DOJ could seek extraterritorial warrants. More broadly, it would codify DOJ's ability to "to use remote access to search electronic storage media and to seize or copy electronically stored information," an authority that is not explicitly found in the rule now. Before looking at the amendment, it is helpful to understand some of the background and cases behind the current version of Rule 41. The universe of reported cases in which DOJ has relied on the current version of Rule 41 to remotely access a target's computer is small, but does shed light on how DOJ might use amended Rule 41 if adopted. The federal government's ability to remotely access computers as part of a criminal investigation was first revealed in 2001 when journalists discovered the existence of "Magic Lantern," later renamed the "Computer and Internet Protocol Address Verifier," a covert project used by the FBI to hack into a target's computer. Known more generally as "network investigative techniques" (NIT), this technology can be used to gather both metadata from a computer, such as the Internet Protocol (IP) address of a target's computer, and the c ontent of data stored on that computer, such as email communications or photographs. The first publicly reported court case which relied on a NIT was in 2007, where the government obtained a Rule 41 search warrant to identify a Myspace user who had made bomb threats to a high school. The warrant permitted the government to access the computer's IP address, MAC address, and other identifying information, but explicitly did not permit access to the content of any electronic messages. In a similar case from 2013, law enforcement officials were investigating a series of threats to detonate bombs at universities and airports scattered throughout the United States. The FBI sought and received a warrant from a magistrate judge of the U.S. District Court for the District of Colorado that permitted the FBI to access, among other information: the target computer's IP address; MAC address; the computer's open communication ports; a list of programs running on the computer; the type of operating system running on the computer; the web browser running on the computer; the computer's time zone information; and the Uniform Resource Locators (URLs) to which the target computer was previously connected. In these cases, the FBI used a "phishing attack," in which it sent an email embedded with a link to the target of a search. Once the user hit the link, it connected to FBI computers and downloaded malicious software that sent vital identifying information back to the FBI. Ultimately, the software produced two IP addresses which suggested the suspect was located in Tehran, Iran. In addition to targeting specific computers, DOJ has also targeted nefarious websites more broadly. In 2012, for instance, the government initiated Operation Torpedo, which involved the take down of a large-scale online child pornography network, users of which utilized the Tor network to anonymize their identities when accessing the website. There, the magistrate judge issued a warrant to install a NIT that would collect the IP addresses and other identifying information from visitors to the child pornography site, a technique known as a "watering hole" attack. Ultimately, based on this information, 14 individuals were brought to trial on child pornography charges. In addition to obtaining addressing information, remote access searches can also be used to activate the microphones in certain cell phones and laptops to record conversations without the user knowing. Additionally, the FBI has stated that it can access the camera on laptops without activating the light which lets users know it is recording. Perhaps the most prominent case for purposes of the proposed Rule 41 amendment is a 2013 magistrate judge's ruling from the Southern District of Texas in which the government's request to conduct covert searches was denied. There, the government requested a search warrant to remotely search an unknown computer in an unknown location that was believed to have been used to perpetrate a fraudulent scheme. The government wanted access to, among other things, IP addresses used; records of Internet activity, including browsing history and search terms used; and photographs taken using the computer's built-in camera. Magistrate Judge Stephen Smith rejected the government's application on two grounds. First, Judge Smith found that the government's application did not meet one of the territorial limitations found in the Rule. Again, Rule 41 permits extraterritorial warrants in four limited instances, but does not cover instances where the location of the target is simply unknown from the outset. Second, he found that the application failed to meet the particularity requirement contained in the Fourth Amendment, which requires that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and  particularly describing the place to be searched, and the persons or things to be seized ," as the government failed to explain how the target device was to be found. Further, Judge Smith noted the risk of targeting innocent computers when the location of the target is unknown. The proposal to amend Rule 41 was first brought to the attention of the Judicial Conference in a September 2013 memorandum from DOJ, which highlighted two "increasingly common situations" faced by investigators that warranted a change in the rules. The first is where the warrant sufficiently describes the device to be searched, but law enforcement officials do not know the location of the target device. The second is where the investigation requires officials to engage in surveillance of numerous computers in multiple jurisdictions. The proposed rule change was published for public comment in August 2014, in which DOJ, privacy advocates, computer experts, and members of the general public offered various arguments for and against the proposed rule change. On April 28, 2016, the Supreme Court transmitted the proposed rule change to Congress. Pursuant to the Rules Enabling Act, unless Congress responds via enacted legislation, the proposed rule will take effect on December 1, 2016. Upon transmittal of the proposed amendment to Rule 41, Senator Ron Wyden and Representative Ted Poe introduced companion bills ( S. 2952 , H.R. 5321 ) to reject this rule change.