Tuesday, January 28, 2014
Stephen E. Henderson (University of Oklahoma College of Law) has posted Our Records Panopticon and the American Bar Association Standards for Criminal Justice (Oklahoma Law Review, Forthcoming) on SSRN. Here is the abstract:
"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented and massive collection and retention by third parties of private information, and then secondarily the access to that information by others including law enforcement. For the past seven years, from 2006 to 2013, I served as the Reporter in drafting the black letter and commentary to what is now the twenty-fifth volume of the American Bar Association Standards for Criminal Justice, this volume relating to law enforcement access to third party records. Considering the talent that served on the Task Force and Standards Committee, and the significant vetting of the ABA process, it would be surprising if the Standards did not get many things right, and hopefully that is evident in the Standards themselves. But inevitably any first-of-its-kind project of this magnitude will be imperfect and incomplete, and continuing to move the conversation forward was my purpose in organizing this Symposium. The articles in this volume are a testament to its success, and here I explain the drafting of the Standards, including a few substantive highlights, and place the Standards in their unique historic context.We have begun to capture, record, and analyze everything within given domains, as opposed to selectively preserving only what is contemporaneously considered relevant or necessary. As we step into this brave new world, the Standards have great value not only to our democratic decision makers, but to all of us, as we seek to reap its benefits without sacrificing our privacy, and with that privacy our individuality and even our personhood.