CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, April 2, 2012

Murphy on Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions

Erin Murphy (New York University School of Law)

Erin Murphy (New York University School of Law) has posted The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions (Michigan Law Review, Forthcoming) on SSRN.  Here is the abstract: 

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States federal code currently contains over twenty separate statutes that restrict both acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern
existence. They control police access to drivers’ licenses, education records, health histories, telephone calls, e-mail messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards – ranging from warrants and court orders to subpoenas and demand letters. But across this remarkable diversity, there is one feature that all of the statutes share in common: each contains a provision exempting law enforcement from its general terms.

Yet despite the appearance of law enforcement exemptions in every generally applicable privacy statute on the federal books, they have garnered virtually no scholarly attention. Privacy scholars have primarily busied themselves with mainstream consumer interests, and criminal justice scholars have chiefly focused on the Fourth Amendment. As a result, these exemptions have gone largely unnoticed and unexamined. At the same time, at least four Supreme Court justices recently suggested in United States v. Jones that the proper scope of privacy protection might be a topic better left to legislatures than courts.

In response to these concerns, this article examines, comprehensively and in depth, the specific operation of privacy statutes with regard to law enforcement. In its most elemental form, this article answers the question: what does the federal statutory approach to regulating privacy from the police look like, and in what ways does that mimic, overlap with, or differ from the Fourth Amendment constitutional approach? In answering this question, this article also engages in the deeper democratic debate over constitutional versus statutory approaches to controlling the police, using the lessons garnered from examining existing privacy regulations to better inform the secondary argument about who does it best.

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