Washington, DC (June 8, 2016) -- The Fourth Amendment has entered the digital age. New surveillance technologies and programs — from GPS tracking devices to automated license plate readers to bulk data collection — have upended traditional law enforcement practices and created new challenges for defense lawyers.
To address the new threats to privacy posed by the digital age, the National Association of Criminal Defense Lawyers (NACDL), the Foundation for Criminal Justice, the American University Washington College of Law, and the Criminal Law Practitioner presented a symposium entitled "The Fourth Amendment in the Digital Age." Criminal law practitioners, scholars, and technology experts discussed how digital searches, government surveillance programs, and new technologies are impacting Fourth Amendment protections in criminal cases as well as litigation strategies to challenge these developing threats to privacy. This report, prepared by University of the District of Columbia David A. Clarke School of Law Professor Andrew G. Ferguson, offers an overview of the symposium and the substantive areas of concern related to new technological and legal changes that impact privacy in the digital age. In addition, the report offers detailed recommendations concerning legal strategy, public education, legislative advocacy, and policy in this area.
"As the technology available to governments evolves, so too must we understand its potential to invade privacy in ways never imagined by the drafters of the Fourth Amendment, but most certainly contrary to the limitations on government power that they envisioned," said NACDL President E.G. "Gerry" Morris. "The defense bar must be equipped to challenge the use of these practices through sophisticated litigation strategies. This symposium, and the publicly-available report it generated that we are releasing today, are important steps in furtherance of these objectives."
The symposium examined how the United States government is collecting, searching, storing, and sharing information on suspects and non-suspects alike, including how new surveillance techniques developed for counterterrorism are being used in non-terrorism-related investigations. The symposium also explored how recent changes in Fourth Amendment doctrine and police practices have created opportunities and challenges for defense lawyers. Indeed, one recent case revealed that judges had been regularly signing orders without an understanding of the technology behind the surveillance being authorized. The final panel looked to the future, asking how the courts, Congress, and companies might adapt to the rise of the surveillance state. There was also an in-depth conversation with former Chairman and CEO of Qwest Communications International Joseph P. Nacchio, hosted by NACDL Executive Director Norman L. Reimer. The discussion focused on the story of what happened to Nacchio and Qwest after refusing to cooperate without specific legal authority when the government sought to use Qwest communication cables to conduct surveillance.
The symposium report, The Fourth Amendment in the Digital Age, is available for download at www.nacdl.org/FourthAmendmentInTheDigitalAge. Research and publication of this report was made possible through the support of individual donors and foundations to the Foundation for Criminal Justice, NACDL's supporting organization.
Video of the symposium is available at C-SPAN.org via the links below:
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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 many thousands of 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.