News Release ~ 03/19/2013

Former Prosecutors and Judges Support Warrant Requirement for the Content of Electronic Communications

Washington, DC (March 19, 2013) – Today, Senator Patrick Leahy introduced the Electronic Communications Privacy Act Amendments Act of 2013. This bill is virtually identical to the bill that was overwhelmingly passed by the Senate Judiciary Committee in November. Last year, over 30 former prosecutors and judges joined together in support of Senator Leahy’s efforts to require law enforcement to obtain a warrant before they may access the content of electronic communications, a requirement supported by the National Association of Criminal Defense Lawyers (NACDL). In support of Senator Leahy’s previous effort, the former law enforcement officials issued a letter arguing that there is “no difference” between communications mailed through the postal service, “or communications that are stored in a desk drawer, and electronic communications sent via a third-party service provider.”

The officials further provide that: “Requiring law enforcement to obtain a warrant from a court does not prevent law enforcement from doing its job. In fact, it would place law enforcement officers on more solid ground when they access private electronic communications, and make it more likely that important evidence of crime is not thrown out in criminal cases. Law enforcement agencies have cited various concerns in the past about what this amendment would do to their ability to act quickly in emergency situations or to protect children from exploitation or abuse. Their fears are unfounded as Senator Leahy’s bill does not amend exceptions found in current law regarding emergencies involving danger of death or serious injury. Likewise, Senator Leahy’s amendment does not amend current law that requires a third-party provider to hand over to the government any information involving evidence of child pornography, child abuse, and/or child exploitation. These current exceptions will be maintained and unaffected by the Leahy amendment.”

The letter in support of a warrant for content requirement can be found here.

A helpful report on law enforcement access to third-party records, including email communications, can be found here.

Contact: Ivan J. Dominguez, Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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