☰ In this section

Fourth Amendment

 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  
- U.S. Const. amend. IV. 

NACDL seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual through litigation and public advocacy. The Fourth Amendment is the appropriate starting point for assessing the limits on government intrusion into one's privacy, and its protections must continue to thrive in the digital age. The Fourth Amendment and its guarantees should not turn on the medium used to transmit private information, nor on how the information is stored. NACDL strives to guarantee that evidence obtained in violation of the Fourth Amendment is excluded in a court of law.

Facial Recognition Webinar

Watch "Face-Off: Recognizing and Challenging the Use of Facial Recognition Technology"

On September 18, NACDL held a free webinar about the practices, risks, and limitations of emerging facial recognition technology. With an increasing number of police departments across the country turning to unregulated, untested, and flawed facial recognition technology to identify suspects, it is vital defenders understand the technology, its limitations, and how to challenge its use in their cases. This webinar explored these issues with the Georgetown Law Center of Privacy and Technology's Clare Garvie, Bronx Defender's Kaitlin Jackson, and computer scientist Joshua Kroll. This webinar was supported by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance. 

Watch the recording of the webinar here.

Location Privacy after Carpenter

"Building on Carpenter: Six New Fourth Amendment Challenges Every Defense Lawyer Should Consider" by Michael Price, Senior Litigation Counsel, and Bill Wolf, member of NACDL's Board of Directors and NACDL's Fourth Amendment Advocacy Committee.

"The implications of the Supreme Court's decision in Carpenter v. United States are just now coming into view as lower courts begin to apply Carpenter's lessons to other forms of modern surveillance. [...] This article offers a snapshot of some current investigative techniques that may be ripe for constitutional challenges in a post-Carpenter world." 

Read the full text here.

Read "Concealing Evidence: 'Parallel Construction,' Federal Investigations, and the Constitution," written by Natasha Babazadeh and published in the Fall 2018 issue of the Virginia Journal of Law and Technology.

"Federal law enforcement agencies are increasingly relying on “parallel construction" to pursue criminal cases against U.S. persons. Parallel construction is the process of building a separate — and parallel — evidentiary basis for a criminal investigation. The process is undertaken to conceal the original source of evidence, which may have been obtained unlawfully. Clandestinely used for decades, this process raises serious constitutional questions."

Read the full text here.

The June 2018 issue of The Champion featured "Carpenter v. United States and the Future Fourth Amendment" by Michael Price, Senior Litigation Counsel.

"The Supreme Court's recent opinion in Carpenter v. United States has set a course for rethinking Fourth Amendment rights in the digital age. It is the third bright star in the last seven years, marking a welcome and long overdue departure from the so-called 'third-party doctrine' that has limited privacy rights for the last four decades. In a 5-4 decision, the Court ruled that police must usually get a warrant to access historical 'cell site location information' (CSLI) — geographic data held by a cellphone service provider about where a device has connected to its network. It is a major win for privacy rights and it shines the way forward for future Fourth Amendment challenges: digital is different. The question becomes, different how? And how far might Carpenter extend?"

>Read the full text here.

On July 2, 2018, the Center on Privacy and Technology at Georgetown Law and the Fourth Amendment Center at the National Association of Criminal Defense Lawyers hosted a forum discussing location and cell phone privacy after the Supreme Court ruling in Carpenter v. United States.

The Supreme Court held, in a 5-4 decision, that law enforcement agencies are required to obtain a warrant when accessing historic cell site location information. Featuring the insight of privacy experts and seasoned litigators, the discussion explored both the broad implications of the landmark ruling and the practical ramifications on future litigation. The program included Nathan Freed Wessler, who argued the case for Carpenter, Laura Donahue a Fourth Amendment expert and professor at Georgetown Law, and Maryland defense attorney Jason Downs along with other privacy experts, attorneys and technologists.

Location Privacy after Carpenter, Part 1: Big Picture Implications of the Carpenter decision – Featuring Dr. Sibren Isaacman, cellular network data expert, Assistant Professor at Loyola University Maryland; Nathan Freed Wessler, ACLU Attorney for petitioner Timothy Ivory Carpenter; Professor Laura Donohue, Fourth Amendment expert, Georgetown University Law Center; Professor Stephanie Pell, location privacy expert and former Hill staffer, West Point's Cyber Institute. Moderated by Alvaro Bedoya, Executive Director of the Center of Privacy and Technology at Georgetown Law.

Watch Part 1 of the program here. 

Location Privacy after Carpenter Part 2: Practical Implications of the Carpenter decision – Featuring Jason Downs, criminal litigation expert, Downs Collins; Todd Hesel, appellate criminal prosecutor, Maryland Office of the Attorney General; Matt Mitchell, digital safety and privacy expert, Tactical Technology Collective and Crypto Harlem. Moderated by Jumana Musa, Director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers.

Watch Part 2 of the program here. 

Watch NACDL's Webinar “Unknown Unknowns: How to Expose the Government's Evidence Laundering"

On May 23, 2018, NACDL held a free webinar about the practice of government evidence laundering, known as “parallel construction." When the U.S. government launders the origin of evidence obtained in criminal cases, it is able to obscure secret surveillance technology or potentially unconstitutional investigative methods from the accused in criminal cases. The webinar featured Brian Pori, a federal public defender from New Mexico with extensive experience leading trainings on government evidence laundering, and Sarah St. Vincent, the author of Human Rights Watch's comprehensive investigative report “Dark Side: Secret Origins of Evidence in US Criminal Cases."

Watch the recording of the webinar here. 

Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer

NACDL recently released a primer will educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S. Along with the primer, NACDL compiled a resource of district court cases that deal with the border search exception and digital devices, with special attention paid to the influence of Riley v. California.  Read "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer" here and find the companion case list here

On January 4, 2018, U.S. Customs and Border Protection issued a new directive on border searches of electronic devices. You can find it here. Please stay tuned for an updated version of our primer.  

CBP updates directive on border searches of digital devices 

On January 4, 2018, Customs and Border Protection (CBP) released a new directive on the border searches of digital devices. The new directive makes significant changes to the practices that NACDL detailed last fall in “Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer." The directive includes specific procedures to protect attorney-client privilege and work product doctrine, as well as a dangerous new provision that asserts travels have an "obligation" to provide CBP with their device passwords. You can find the directive here. NACDL will shortly update the primer. In the meantime, you can learn more about the directive from Esha Bandari at the ACLU, the Deeplinks blog at the Electronic Frontier Foundation, and Edward Hasbrouck's two-part analysis of the password provision.

Watch NACDL's webinar "Privileged Means Privileged: Keeping the Government Out of Your Digital Devices at the Border"

U.S. Customs and Border Protection (CBP) searches the digital devices of people at border crossings and at ports of entry without a warrant and without suspicion. Criminal defense lawyers are uniquely exposed to abuse in this context, as their devices store privileged communications and work product. The National Association of Criminal Defense Lawyers (NACDL) recently released a primer on the border searches of electronic devices. Drawing from the primer, this webinar aims to empower members of the defense community to be proactive in protecting their sensitive documents and communications when re-entering the country. 


 Watch the recording of the webinar here. 

privileged means privilegedThe webinar was presented by Esha Bhandari, a staff attorney with the ACLU Speech, Privacy, and Technology Project, where she focuses on litigation and advocacy relating to online speech, academic freedom, privacy rights, and the impact of big data. She is counsel for the plaintiffs in Alasaad v. Duke, a challenge to the government's practice of conducting warrantless searches of electronic devices at the border. Esha was previously an Equal Justice Works Fellow with the ACLU Immigrants' Rights Project, where she was involved in litigating cases concerning a right to counsel in immigration proceedings, detainer policies, and discriminatory state and local laws. She has also been a staff attorney at the Center for Reproductive Rights, where she worked on two trials challenging a Texas law limiting women's access to reproductive health care. Esha is a graduate of McGill University, the Columbia University Graduate School of Journalism, and Columbia Law School, and served as a law clerk to the Hon. Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit.

Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.

Challenging Government Hacking in Criminal Cases

NACDL recently published a guide on challenging evidence seized by government-installed computer malware, authored by the American Civil Liberties Union with input from NACDL and the Electronic Frontier Foundation.

The guide, “Challenging Government Hacking in Criminal Cases," examined recent court decisions on the government's use of malware in the context of Fourth Amendment protections from unreasonable searches. NACDL hosted a webinar on the guide featuring the expertise of Colin Fieman, an Assistant Federal Public Defender and lead counsel in the first “Operation Pacifier" cases, and Paul Ohm, a law professor and specialist in information privacy, computer crime law, intellectual property, and criminal procedure.
     Government hacking webinar 
Watch our new webinar "Defending Government Hacking Cases" here. 
Read the guide “Challenging Government Hacking in Criminal Cases" here. 

Body Camera Webinar

Watch "Policing Body Cameras - Shaping Policies and Defending Cases in Body Camera Jurisdictions

NACDL recently released its report Policing Body Cameras: Policies and Practices to Safeguard the Rights of the Accused. The report outlined NACDL's position on the introduction and use of body cameras by law enforcement. This webinar walks through the recommendations and talks about how to negotiate stronger body camera policies in your jurisdiction, the technical aspects of body cameras, and strategies and tactics for defending clients in body camera jurisdictions. Video recording of the webinar is available here.

Surveillance Self Defense

A Series of NACDL Primers

The Fourth Amendment is being redefined in the digital age. Surveillance programs and technologies that were ostensibly created and implemented to combat terrorism are being used in every aspect of the criminal justice system. NACDL is producing a series of primers to introduce different surveillance programs and techniques to defense lawyers and provide strategies and resources to combat them in cases. This is an ongoing project and will be updated periodically.

Encryption Webinar

Watch "Keep It Confidential: Protecting Your Privileged Client Communications with Encryption" 

Defense lawyers regularly use phone calls, texts, and emails to communicate with clients, investigators, witnesses and others associated with their cases. Many of these communications are privileged, yet government surveillance programs can capture and store them. This webinar explored how this happens, and how defense lawyers can keep their communications out of government hands.

During the first part of the webinar, Jack Gillum, reporter on The Associated Press's Washington investigations team, addressed his experience with encrypting communications and why he and others in his industry have made the switch to these encrypted platforms. Neema Singh Guliani, Legislative Counsel at the American Civil Liberties Union, then laid out the different surveillance programs and technologies that may be intercepting your privileged communications. Video recording of this first part of the webinar is available here.

During the second part of the webinar, Harlo Holmes, Digital Security Trainer with the Freedom of the Press Foundation, walked through some basic ways to encrypt phone calls, texts, and email communications. Video recording of the second part of the webinar is available here.

News Of Interest

"'We're the Federal Government': US Marshals Sued Over Warrantless Raids," by Colby Hamilton, New York Law Journal, March 20, 2019.

"Facial recognition overkill: How deputies cracked a $12 shoplifting case," by Ben Fox Rubin, CNet, March 19, 2019.

"Opinion: Facebook's privacy meltdown after Cambridge Analytica is far from over," by Siva Vaidhyanathan, The Guardian, March 18, 2019.

"Robert Kraft case reveals how police can secretly install cameras inside a private business," by Scott Zamost, Hannah Kliot and Bianca Fortis, NBC News, March 14, 2019.

"ICE is tapping into a huge license-plate database, ACLU says, raising new privacy concerns about surveillance," by Drew Harwell and Tony Romm, Washington Post, March 13, 2019.

See more news

Advertisement Advertise with Us

In This Section

Advertisement Advertise with Us