Posted by Orin Kerr:
The Patriot Act and the Exclusionary Rule:
http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115330533
I had a fun time [1]testifying this morning about the Patriot Act and
the rules that govern Internet crime investigations. I was struck by
the bipartisan sense among the Judiciary Committee members of the need
for some kind of increased oversight of Internet surveillance
practices. They weren't sure exactly what kind of oversight to add,
but they were interested in exploring the issue. I've been arguing in
favor of a particular remedy to this problem for a few years now, and
we spent a bit of time exploring the approach during the hearing. I
thought my proposed remedy might be of interest to a broader blog
audience.
First, a bit of background. Somewhat remarkably, Internet
surveillance law does not include a suppression remedy for violations.
The Fourth Amendment is traditionally enforced with a suppression
remedy; if the police violate the Fourth Amendment, they can't use the
evidence illegally obtained. Not so in the case of the Patriot Act and
the Internet privacy statutes. When Congress passed its first Internet
privacy law in 1986, they struck a deal with the Justice Department:
the Justice Department would go along with the legislation so long as
there was no statutory suppresion remedy for violations. That
compromise remains on the books today. As a result, Congress's statute
provides strong civil remedies but no right to suppression of evidence
unlawfully obtained. (While the Fourth Amendment ruppression remedy
exists in theory, for technical reasons it plays little to no role in
practice.) If the government breaks the rules -- wiretapping your
Internet account unlawfully, getting your e-mail without a court
order, etc. -- you are not entitled to suppression of the evidence.
I wrote a law review article in 2003 explaining why this unusual
remedies scheme has had terrible consequences for both civil liberties
and law enforcement. The article is [2]Lifting the 'Fog' of Internet
Surveillance: How A Suppression Remedy Would Change Computer Crime Law
(.pdf, 40 pages), published in the Hastings Law Journal. On the civil
liberties side, the lack of a suppression remedy cuts off an important
means of judicial oversight. The Fourth Amendment's exclusionary rule
triggers scrutiny of the goverment's investigation whenever criminal
charges are filed. The government has to explain and justify the steps
it took, and that creates a record to help understand existing
practices and to check for abuses. Absent a suppression remedy,
however, the government's practices remain mostly secret. Civil suits
against the government can be filed in theory, but rarely are filed in
practice; the reason in part is that the government faces no burden
absent an exclusionary rule to explain the steps it took to solve the
case in the first place, and without that explanation it's hard to
challenge the government's conduct.
Less intuitively, the 1986 compromise hasn't served law enforcement
interests, either. While prosecutors don't face suppression
challenges, the absence of those challenges means that prosecutors
don't get a chance to explain to judges how the statutes work (and in
some cases how they don't work). With no challenges, there are almost
no cases on the books explaining what the government can and can't do.
Even worse, the presence of strong civil remedies has provided a boon
to plaintiffs' lawyers, who have brought lots and lots of silly civil
suits under the Internet surveillance statutes. Judges have had a
terribly hard time dealing with these suits; when forced to interpret
these laws in the very unnatural setting of a civil suit, and with no
other cases on the books, judges almost always misunderstand the
statute and botch the holding in ways with serious but unforeseen
consequences for the government. The law of Internet surveillance has
ended up unusually vague, and the few court decisions on the books are
civil cases that only make matters more confusing.
I think the answer is to add a statutory suppression remedy for
violations of the statutory Internet surveillance laws. I explain the
details in the article linked to above. Will it happen? Maybe not this
year. But some day, I think it will.
References
1. http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115246002
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=374282
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