Thursday, August 21, 2014
Andrew E. Taslitz and Stephen E. Henderson (American University - Washington College of Law and University of Oklahoma College of Law) has posted Protecting Privacy in Third Party Records: Can the Grand Jury Help? (American University Law Review, Forthcoming) on SSRN. Here is the abstract:
The newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR) fill a constitutional hole in privacy protection by rejecting the third party doctrine. In place of that historic federal constitutional void, LEATPR implements four methods. First, some level of justification is required for law enforcement access to records. This level of justification is not uniform, but instead varies with the degree of privacy of the desired record. Second, where obtained records have a relatively high degree of privacy, LEATPR requires providing notice to the focus of those records. Third, LEATPR requires that obtained records be protected against unauthorized access and distribution. And, fourth, the legislature must create accountability mechanisms to guarantee these substantive protections. But LEATPR exempts from its requirements access to records via a grand jury subpoena, and, perhaps more surprisingly, potentially exempts access via a “functionally equivalent prosecutorial subpoena.” The impetus for this exemption was a concern that applying LEATPR’s requirements to the grand jury, or even to its functional equivalent, is unnecessary and might radically undermine longstanding systems of criminal investigation in perhaps unforeseeable ways. This essay addresses whether this exception can be justified by reviewing each of the four main regulatory mechanisms of LEATPR and questioning whether grand jury procedures provide an adequate substitute. In finding that they do not, the essay indicates how to improve the grand jury process.