News Release ~ 07/24/2014b

NACDL Report Addresses Need to Maintain Privacy Protections for Digital Evidence

Washington, DC (July 24, 2014) – In recent years, changing technologies have presented courts with the question of how to protect both citizens’ privacy right and satisfy the demands of law enforcement. What's Old is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches – a new white paper by the National Association of Criminal Defense Lawyers' Fourth Amendment Advocacy Committee – addresses this important issue. Noting that while devices have changed, the Fourth Amendment has not, the report contends that the same Fourth Amendment protections governing traditional searches apply to digital searches.

NACDL President Jerry J. Cox: "The growing use of digital technologies does not mean the privacy rights enshrined in our Constitution have to be compromised. We have never allowed law enforcement unfettered access to search and seize physical property when looking for evidence of a crime. Clear limits must be established for the search and seizure of digital evidence as well. The recommendations contained in this report are a guide for how judicial and legislative bodies can protect Americans’ privacy rights, while still allowing law enforcement to do its job."

What’s Old is New Again begins with a discussion of the constitutional issues that arise with the search and seizure of digital devices and the data stored in them. According to the report, digital evidence should be considered "digital papers and effects," and is therefore best addressed by case law relating to searches of papers. The report then looks at warranted searches of digital devices, including applications for search warrants and the pre-search restrictions that magistrates can place on warrants. Finally, the report offers a comprehensive set of recommendations for legislative and judicial reform to the application and execution of warrants to search digital evidence.

Specifically, the report recommends that:

1. Magistrates should be required to impose pre-search mandates when necessary to ensure particularity of places to be searched or things to be seized.

2. The remedy for government agents' failure to follow pre-search mandates imposed by magistrates should be suppression of any evidence found as a result of the search.

3. Magistrates should continue to perform traditional post-search reasonable analyses.

4. Magistrates should require agents to foreswear reliance on the plain view doctrine.

5. A second warrant should be required for agents to obtain evidence of a crime not covered by the original warrant.

6. "Filter Teams" must be independent from the criminal investigation and prosecution and bound by the terms of the warrant.

7. Warrants should include provisions for the destruction or return of digital information as appropriate.

8. Agents must retain records of the particularities of the digital search, which should be shared with defendants in criminal cases.

9. Legislatures should pass laws to guide courts in analyzing the reasonableness of searches conducted pursuant to warrants containing pre-search requirements.

A full copy of What’s Old is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches can be downloaded here. For additional NACDL resources on Privacy and the Fourth Amendment, please visit http://www.nacdl.org/fourthamendment.

Contact Information

Isaac Kramer, Public Affairs and Communications Assistant, (202) 465-7656 or ikramer@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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