Tuesday, April 14, 2015
David C. Gray (University of Maryland Francis King Carey School of Law) has posted The ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records: Critical Perspectives from a Technology-Centered Approach (Oklahoma Law Review, Vol. 66, page 919, 2014) on SSRN. Here is the abstract:
Long a topic of interest only to Fourth Amendment groupies, the third-party doctrine is now a central concern for citizens of the United States and the world. Much of the impetus for this global awakening is a series of leaked documents proving what many privacy scholars already suspected or knew: the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Administration, their foreign counterparts, and a host of domestic agents are engaged in programs of expansive and invasive surveillance that many have credibly compared to the dark prophesies of George Orwell’s 1984. Among the more disturbing features of this burgeoning surveillance state is the increasing access that governments have to information about us and our activities that we entrust to third parties such as our telephone companies, financial institutions, internet service providers, social networks, and commercial partners. Recognizing the privacy implications of governmental access to information gathered or held by third-parties, the American Bar Association recently issued model standards governing law enforcement access to third party records. This invited essay analyzes these standards and ultimately concludes both that they adopt a strategy likely to fail and also promote a regulatory framework that poses serious threats to core interests in individual liberty and functioning democracy.