PICKING UP THE FLAG ON ILLEGAL PROCEDURE: WHY RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE NEEDS TO BE UPDATED WITH THE TIMES
By: Geoff Koslig, Volume 104 Staff Member
The Fourth Amendment’s drafters could have scarcely imagined social media and the internet. For decades, courts have struggled to apply the Amendment to searches of or utilizing new technologies. Recently, courts have struggled with how the Fourth Amendment affects searches of the vast amount of data generated by cellphones and our use of the internet. In addition to these constitutional questions, the rules governing the federal courts have changed to address new technologies. The Federal Rules of Criminal Procedure create guidelines for executing search warrants, but because these rules have not kept pace with searches of electronic data held by third parties, courts have begun to permit possible routine violations of the rules. This repetitive permission to violate the rules threatens to undermine the legitimacy of the rules while creating other problems.
In United States v. Nyah, the Eighth Circuit addressed one procedural issue created by modern technology. Rule 41 of the Federal Rules of Criminal Procedure requires that a search warrant be executed “within a specified time no longer than 14 days.” Yet when a search warrant is served on a technology company, it may take the company more than fourteen days to turn over data. In Nyah, the Eighth Circuit suggested—while refusing to hold—that this violated the Rules but that because this violation did not prejudice the defendant, suppression of the evidence was not warranted. In addition to setting up a potential split with other courts, the panel’s reasoning in effect permits regular violations of Rule 41. In order to prevent an actual circuit split and routine—if non-prejudicial—violations of the rule, this issue must be addressed directly by amending Rule 41.
I. THE UNIQUE CONSTITUTIONAL ISSUES POSED BY THE PREVALENCE OF INTERNET COMPANY SEARCHES
Historically, if the government wanted to access third party data, it did not need a warrant. The Supreme Court recently refused to extend this third party doctrine to certain data generated by cellphones. The Court has recognized that the omnipresence of modern technology coupled with its ability to generate quantitatively and qualitatively different data than in the past has altered the landscape such that new guidelines must be established.
Social media and other internet technologies are no different in this regard. In 2019, seventy-two percent of American adults use social media. Only five percent of Americans report rarely using email. In addition to its ubiquity, Facebook, Google and other companies store data on all aspects of our lives including location data, search history, photographs, and deleted content.
Police departments are turning to technology companies to solve crimes. In 2016, sixty percent of respondents to a survey of police departments reported contacting social media companies for evidence. Facebook data shows the rapid growth of these requests. In 2013, the first year for which data is available, Facebook received 13,483 requests pursuant to search warrants. In just the first half of 2019, it received 29,604.
Because the use of various technologies is ubiquitous, courts will face a growing number of search warrants for information held by these companies.
II. THE FOURTEEN DAYS PROBLEM AND A POSSIBLE SPLIT
Rule 41 requires that a search warrant be executed “within a specified time no longer than 14 days.” In Nyah, a judge authorized a search warrant on July 7, 2016, specifying that it be executed by July 21, 2016. The government delivered the warrant to Facebook on July 8, 2016, but Facebook did not provide the data until July 22, 2016. If a warrant is executed when it is delivered to a provider, it was executed on time. If it is executed when the data was received, it was outside the time permitted by the warrant and Rule 41.
This issue is hardly isolated to Nyah. It can take several weeks or months for a company to provide data. In one case in Arizona, Google took six months.
Although the court in Nyah claimed that it “need not resolve definitively” whether a warrant is executed on the day law enforcement delivers it to the company or on the day law enforcement receives the data from the company, it spends several paragraphs arguing that a warrant is only executed when the data is received.
The Eighth Circuit, however, excused this violation of the rules. It held that because (1) law enforcement did not “reckless[ly] disregard . . . proper procedure;” (2) the defendant was not prejudiced by a one day delay; and (3) the Fourth Amendment did not create a fourteen day limit for executing search warrants, the evidence should not be suppressed.
As the Eighth Circuit noted, two other courts have addressed this issue: both disagreed with the Eighth Circuit but did so “in cursory fashion.” In United States v. Farrad, the Sixth Circuit—buried in a footnote—found that the warrant at issue was executed on time despite not receiving Facebook data until months after the deadline. In United States v. Allen, Judge Melgren of the District of Kansas held that although Facebook did not respond until three weeks after the deadline, the warrant was timely executed because law enforcement served Facebook the day after it was authorized. Neither opinion explained why under Rule 41 a warrant is executed upon delivery and not upon receipt of the contents. Although both conclusions in the Sixth and Eighth Circuits were dicta, they suggest that there is a potential circuit split about the meaning of “execute” in Rule 41.
Both the Eighth Circuit and Judge Melgren excused a possible violation of Rule 41. While the argument to excuse these violations is sensible, it creates three problems.
First, as the number of such warrants increases, courts may find themselves routinely excusing Rule 41 violations. As a normative matter, courts should not permit routine rule breaking by law enforcement even if there is no prejudice to defendants. Doing so may delegitimize the Rules and the authority of courts.
Second, routine rule breaking begs the question of whether courts should find a particularly long violation of Rule 41 to be impermissible. If so, it is unclear where or how courts should draw the line. A gap of several years—even without the fault of law enforcement—may stretch what is acceptable for what has a two-week timeline.
Third, the Eighth Circuit held that “[n]o clearly established law dictated that” the warrant had expired and therefore the officer was not reckless in executing the warrant. When a similar situation occurs again in the Eighth Circuit, it is unclear whether an officer should now be on notice that the warrant is not executed until the data is received and may be acting recklessly in violation of Rule 41.
III. FIX RULE 41: WHY AMENDING RULE 41 IS THE BEST SOLUTION
Continuing to excuse routine violations of Rule 41 is unsatisfactory. Instead it is time for a new approach that will ensure the legitimacy of the Rules and address the other problems routine violations create. There are some potential solutions to these issues.
First, law enforcement could attempt to force companies to comply within fourteen days. Law enforcement may not have the ability “to control when the recipient of a warrant . . . produces the items sought,” but law enforcement could pressure companies to respond more quickly including potentially asking a court to hold a company in contempt for failing to timely produce data. This approach has several problems. First, going through this process would take substantial time and resources during which data may be produced, mooting contempt proceedings. Second, companies may be working as quickly as possible but are dealing with a growing number of requests. Punishing a company that is attempting to comply unfairly treats it similarly to a company that may be resisting a warrant. Finally, contempt proceedings may tip off targets of the investigation.
Second, the Eighth Circuit proposes that if a recipient of a warrant does not respond within fourteen days, the government “may simply obtain a fresh warrant with a renewed period of fourteen days.” Given the growing prevalence of these warrants, this would create a strain on the limited resources of law enforcement and courts. Moreover, sending a new warrant to a company may create confusion. Finally, the additional strain of these new warrants creates a risk that judges will engage in minimal, pro forma review rather than thoroughly evaluating each request.
Third, and the best solution, Rule 41 could be amended to fit the changing circumstances. It is beyond the scope of this post to propose precise revisions. However, as authorized by 28 U.S.C. §§ 2072–74, the Judicial Conference should consult with stakeholders and amend the rules. Regardless of its final contents, it would likely be preferable to routinely excusing Rule 41 violations or ad hoc solutions created by courts. Rule 41 has been amended to deal with increasing numbers of searches and seizures of electronic information. It is time to do it again for information held by third parties.
 Cf. U.S. Const. amend. IV (protecting only tangible things).
 Compare Olmstead v. United States, 277 U.S. 438, 464–66 (1928) (holding that listening to telephone conversations without a warrant is not protected by the Fourth Amendment) with Katz v. United States, 389 U.S. 347, 352–53 (1967) (overruling Olmstead and requiring a warrant before placing a microphone outside a telephone booth to listen to conversations).
 See, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (requiring a warrant to obtain location data held by cellphone providers).
 See, e.g., Fed. R. Civ. P. 34 advisory committee’s note to 2006 amendment.
 Fed. R. Crim. P. 41.
 928 F.3d 694, 699–701 (8th Cir. 2019).
 Fed. R. Crim. P. 41(e)(2)(A)(i).
 See United States v. Nyah, 928 F.3d 694, 699 (8th Cir. 2019).
 Id. at 700–01, 700 n.3. Judge Stras refused to join this part of the panel opinion because it “sa[id] more than it needs to about an issue that it never decides.” Id. at 701 (Stras, J., concurring).
 United States v. Farrad, 895 F.3d 859, 890, 890 n.23 (6th Cir. 2018); United States v. Allen, No. 16-10141-01-EFM, 2018 WL 1726349, at *8 (D. Kan. Apr. 10, 2018).
 Smith v. Maryland, 442 U.S. 735, 743–44 (1979).
 Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).
 See Riley v. California, 573 U.S. 373, 395–96 (2014).
 Social Media Fact Sheet, Pew Research Ctr. (June 12, 2019), https://www.pewresearch.org/internet/fact-sheet/social-media/[https://perma.cc/8FA4-QGMM].
 2016 Adestra Consumer Adoption & Usage Study, Adestra 3, https://www.idg.com/wp-content/uploads/2017/03/2016_Consumer_Adoption_and_Usage_Study.pdf [https://perma.cc/7GAZ-SHMH].
 Dylan Curran, Are You Ready? Here Is All the Data Facebook and Google Have on You, The Guardian (Mar. 30, 2018), https://www.theguardian.com/commentisfree/2018/mar/28/all-the-data-facebook-google-has-on-you-privacy [https://perma.cc/F9XX-UXU6]; see also Paige Papandrea, Note, Addressing the HIPPA-potamous Sized Gap in Wearable Technology Regulation, 104 Minn. L. Rev. 1095, 1107–09 (2019) (discussing the types of data wearable technology companies generate).
 KiDeuk Kim et al., 2016 Law Enforcement Use of Social Media Survey, Urban Institute & Int’l Ass’n of Police Chiefs 5 (Feb. 2017), https://www.urban.org/sites/default/files/publication/88661/2016-law-enforcement-use-of-social-media-survey_5.pdf.
 Facebook Transparency, Jan-Jun 2013, Facebook, https://transparency.facebook.com/government-data-requests/country/US/jan-jun-2013 [https://perma.cc/RC7K-S54K]; Facebook Transparency, Jul-Dec 2013, Facebook,https://transparency.facebook.com/government-data-requests/country/US/jul-dec-2013 [https://perma.cc/9C79-PSVY].
 Facebook Transparency, Jan-Jul 2019, Facebook, https://transparency.facebook.com/government-data-requests/country/US/jan-jun-2019 [https://perma.cc/CC5A-W74J].
 Fed. R. Crim. P. 41(e)(2)(A)(i).
 United States v. Nyah, No. 4:16cr0180 JAJ, slip op. at 9 (S.D. Iowa Apr. 3, 2017).
 E.g., United States v. Farrad, 895 F.3d 859, 890, 890 n.23 (6th Cir. 2018); United States v. Allen, No. 16-10141-01-EFM, 2018 WL 1726349, at *8 (D. Kan. Apr. 10, 2018).
 Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/7B8U-NWL6].
 United States v. Nyah, 928 F.3d 694, 699–700 (8th Cir. 2019).
 Id. at 701.
 Id. at 700.
 United States v. Farrad, 895 F.3d 859, 890, 890 n.23 (6th Cir. 2018).
 United States v. Allen, No. 16-10141-01-EFM, 2018 WL 1726349, at *8 (D. Kan. Apr. 10, 2018).
 Nyah, 928 F.3d at 700–01; Allen, 2018 WL 1726349, at *8.
 Nyah, 928 F.3d at 701.
 Id. at 700.
 Cf. United States v. Microsoft Corp., 138 S. Ct. 1186, 1187 (2018) (discussing a case where the government moved to hold Microsoft in contempt for refusing to comply with a warrant).
 Nyah, 928 F.3d at 700.
 E.g., Fed. R. Crim. P. 41, 2006 amend., 2009 amend., 2016 amend.