The politics of privacy in the criminal justice system: Information disclosure, the fourth amendment, and statutory law enforcement exemptions

Michigan Law Review

Volumn 111, Issue 4, 2013, Pages 485-546

  Murphy, Erin ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 84873104505     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (359)

1. See, e.g., Ronald Jay Allen et al., Comprehensive Criminal Procedure 337 (3d ed. 2011) (describing the Fourth Amendment as "the law's chief source of privacy protec tion"). Of course, it was not until the mid-nineteenth century that a criminal justice system even remotely resembling our own (in terms of professionalized police, public prosecutors, et cetera) came into being, and federal law enforcement was all but nonexistent until the early 1900s.
2. Wolf v. Colorado, 338 U.S. 25 (1949)
3. Mapp v. Ohio, 367 U.S. 643 (1961).
4. Lawrence M. Friedman, Crime and Punishment in American History 61-70, 300-01 (1993).
5. See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a (2006 & Supp. V 2011)
6. Right to Financial Privacy Act of 1978, 12 U.S.C. § 3408 (2006)
7. Fair Credit Reporting Act, 15 U.S.C. § 1681 (2006)
8. Children's Online Privacy Protection Act of 1998, 15 U.S.C. § 6502
9. Video Voyeurism Prevention Act of 2004, 18 U.S.C. § 1801 (2006)
10. Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2006.
11. Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 (2006)
12. Driver's Privacy Protection Act of 1994, 18 U.S.C. § 2721
13. Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232 (2006)
14. Internal Revenue Code of 1986, I.R.C. § 6103 (2006 & Supp. V 2011)
15. Health Insurance Portability and Accountability Act of 1996, 29 U.S.C. § 1181 (2006 & Supp. V 2011)
16. Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (2006)
17. DNA Identification Act of 1994, 42 U.S.C. § 14132
18. Communications Act of 1934, 47 U.S.C. § 230 (2006) (known unofficially as the "Communications Indecency Act")
19. Cable Communications Policy Act of 1984, 47 U.S.C. § 551
20. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 (2006 & Supp. V 2011)
21. Appendix, and a helpful compendium of federal privacy laws can be found online at Ctr. for Democracy & Tech., Existing Federal Privacy Laws, https://www.cdt.org/ privacy/guide/protect/laws.php (last visited Oct. 12, 2012). As this list suggests, the focus of this Article is privacy as regards criminal investigations, not the acquisition or release of criminal justice data (like "rap sheets" or conviction records), or general consumer privacy (like "Do Not Call" statutes).
22. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1632-33 (1999).
23. But see Winston v. Lee, 470 U.S. 753, 766 (1985) (finding that the Constitution prohibits extraction of embedded bullet via compelled anesthetized surgery).
24. Katz v. United States, 389 U.S. 347, 360 (1967).
25. E.g., Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239 (2009).
26. E.g., Katherine J. Strandburg, Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change, 70 Md. L. Rev. 614 (2011).
27. E.g., Sheldon Krimsky & Tania Simoncelli, Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties (2011).
28. This debate resonates beyond criminal justice, of course, see, e.g., Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393 (1996) (summarizing literature and history), but the literature tailored to criminal justice specifically is itself quite rich. Apart from the institutional questions, there are also long-standing debates along the rules-versus-standards line, among other questions.
29. See, e.g., Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227 (1984).
30. See generally William J. Stuntz, The Collapse of American Criminal Justice (2012)
31. William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553 (1992)
32. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)
33. William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780 (2006).
34. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997)
35. William J. Stuntz, Unequal Justice, 121 Harv. L. Rev. 1969 (2008).
36. See, e.g., David Alan Sklansky, Response, Killer Seatbelts and Criminal Procedure, 119 Harv. L. Rev. F. 56 (2006).
37. Robert Weisberg, Response, First Causes and the Dynamics of Criminal Justice, 119 Harv. L. Rev. F. 131 (2006).
38. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
39. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
40. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
41. Patricia L. Bellia, Designing Surveillance Law, 43 Ariz. St. L.J. 293 (2011)
42. Christopher Slobogin, Government Dragnets, Law & Contemp. Probs., Summer 2010, at 107, 131.
43. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
44. See, e.g., Donald A. Dripps, Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-but-Shallow, 43 Wm. & Mary L. Rev. 1, 4 (2001)
45. See, e.g., David Alan Sklansky, Response, Killer Seatbelts and Criminal Procedure, 119 Harv. L. Rev. F. 56 (2006).
46. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
47. Peter P. Swire, Correspondence, Katz is Dead. Long Live Katz., 102 Mich. L. Rev. 904, 913-14, 919-20 (2004).
48. See, e.g., David Alan Sklansky, Response, Killer Seatbelts and Criminal Procedure, 119 Harv. L. Rev. F. 56 (2006).
49. Peter P. Swire, Correspondence, Katz is Dead. Long Live Katz., 102 Mich. L. Rev. 904, 913-14, 919-20 (2004).
50. 132 S. Ct. 945 (2012).
51. The last major pronouncement along these lines was in Kyllo v. United States, 533 U.S. 27 (2001). But that case, which involved heat sensors used on the exterior of a building, lacked the analogic and rhetorical potential of a case involving GPS trackers, which is more readily likened to a broad range of surveillance technologies.
52. See, e.g., Jones, 132 S. Ct. at 957 (Alito, J., concurring in the judgment) ("Ironically, the Court has chosen to decide this case based on 18th-century tort law. ").
53. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
54. For example, states have enacted omnibus data-breach-notification provisions, state privacy torts, trade secrets provisions, rape shield laws, and so forth, none of which are addressed in this Article. California, in particular, has been considered a leader in the area of state privacy legislation. John R. Forbush, Comment, Regulating the Use and Sharing of Energy Consumption Data: Assessing California's SB 1476 Smart Meter Privacy Statute, 75 Alb. L. Rev. 341, 353-54 (2011-12) ("California is the first state to have an office dedicated solely to protecting consumer privacy and the state has been a leader in passing privacy protection statutes that go beyond the minimum 'floor' protections set out in various federal laws. ").
55. For example, states have enacted omnibus data-breach-notification provisions, state privacy torts, trade secrets provisions, rape shield laws, and so forth, none of which are addressed in this Article. California, in particular, has been considered a leader in the area of state privacy legislation. John R. Forbush, Comment, Regulating the Use and Sharing of Energy Consumption Data: Assessing California's SB 1476 Smart Meter Privacy Statute, 75 Alb. L. Rev. 341, 353-54 (2011-12) ("California is the first state to have an office dedicated solely to protecting consumer privacy and the state has been a leader in passing privacy protection statutes that go beyond the minimum 'floor' protections set out in various federal laws. ").
56. Although national security is, of course, a form of "law enforcement" (and concededly, one that often interlaces with domestic law enforcement), I find that the peculiarities of both law and policy with regard to national security are difficult to see beyond once they are introduced. Therefore, I have omitted those provisions in order to bring the purely domestic issues into unobstructed view.
57. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
58. William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960).
59. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
60. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 199 (1966) (describing early interception statutes as concerned with "malicious injury").
61. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 199 (1966) (describing early interception statutes as concerned with "malicious injury").
62. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 199 (1966) (describing early interception statutes as concerned with "malicious injury").
63. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 199 (1966) (describing early interception statutes as concerned with "malicious injury").
64. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
65. See, e.g., Roe v. Wade, 410 U.S. 113 (1973)
66. Eisenstadt v. Baird, 405 U.S. 438 (1972).
67. Griswold v. Connecticut, 381 U.S. 479 (1965).
68. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
69. See, e.g., Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137, 1164-65 (2002).
70. George J. Stigler, An Introduction to Privacy in Economics and Politics, 9 J. Legal Stud. 623, 633 (1980).
71. Privacy Prot. Study Comm'n, Personal Privacy in an Information Society (1977). The report offered a comprehensive assessment of the state of individual privacy rights and recordkeeping practices across a range of environments, with special emphasis on the private sector.
72. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
73. The earliest common law privacy torts reflected the private nature of these concerns, with rights of action created for public disclosure of private facts, intrusion upon seclusion, false light, and appropriation-all of which seem most concerned with private or commercial exploitation of confidences. See Restatement (Second) of Torts §§ 652B-652E (1977).
74. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1632-33 (1999).
75. Kenneth A. Bamberger & Deirdre K. Mulligan, Privacy on the Books and on the Ground, 63 Stan. L. Rev. 247, 250-51 (2011) (comparing American model with the "model of protection adopted throughout Europe: omnibus [Fair Information Practices Principles]-based privacy principles in law or binding codes, interpreted and monitored by... [an] independent privacy agency").
76. The major exception to this rule, however, is the Privacy Act, which is a form of an omnibus protection.
77. See generally Fred H. Cate, Privacy in the Information Age 80 (1997) (describing American law as "a patchwork of uneven, inconsistent, and often irrational" federal and state rules).
78. Kenneth A. Bamberger & Deirdre K. Mulligan, Privacy on the Books and on the Ground, 63 Stan. L. Rev. 247, 250-51 (2011) (comparing American model with the "model of protection adopted throughout Europe: omnibus [Fair Information Practices Principles]-based privacy principles in law or binding codes, interpreted and monitored by... [an] independent privacy agency").
79. Kenneth A. Bamberger & Deirdre K. Mulligan, Privacy on the Books and on the Ground, 63 Stan. L. Rev. 247, 250-51 (2011) (comparing American model with the "model of protection adopted throughout Europe: omnibus [Fair Information Practices Principles]-based privacy principles in law or binding codes, interpreted and monitored by... [an] independent privacy agency").
80. See, for example, FERPA, HIPAA, and GINA.
81. See, for example, HIPAA and the DNA Identification Act.
82. See, for example, CCPA, VPPA, and the PPA.
83. See, for example, ECPA, FERPA, and HIPAA.
84. See, for example, FCRA, COPPA, ECPA, and DPPA.
85. It was not clear at the time the DNA Act was enacted that this was the case, although precedent strongly suggested that collection of DNA from individuals-even convicted felons-would implicate Fourth Amendment interests.
86. See Smith v. Maryland, 442 U.S. 735 (1979).
87. United States v. Miller, 425 U.S. 435 (1976).
88. See, e.g., Miller, 425 U.S. at 435.
89. See, e.g., Miller, 425 U.S. at 435.
90. See, e.g., Miller, 425 U.S. at 435.
91. Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978), prompted passage of the PPA.
92. Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978), prompted passage of the PPA.
93. For example, the DPPA was passed after it came to light that actress Rebecca Schaeffer had been murdered by a stalker who had easily obtained her address from the Department of Motor Vehicles. See 140 Cong. Rec. 7924-25 (1994) (statement of Rep. Moran).
94. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
95. S. Rep. No. 93-1183, at 4 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6919.
96. Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,465 (Dec. 28, 2000) ("This ease of information collection, organization, retention, and exchange made possible by the advances in computer and other electronic technology affords many benefits to individuals and to the health care industry. ").
97. Peter H.W. van der Goes, Jr., Comment, Opportunity Lost: Why and How to Improve the HHS-Proposed Legislation Governing Law Enforcement Access to Medical Records, 147 U. Pa. L. Rev. 1009, 1012 (1999).
98. Kevin B. Davis, Privacy Rights in Personal Information: HIPAA and the Privacy Gap Between Fundamental Privacy Rights and Medical Information, 19 J. Marshall J. Computer & Info. L. 535, 536 (2001).
99. Lawrence O. Gostin et al., The Nationalization of Health Information Privacy Protections, 8 Conn. Ins. L.J. 283, 286 (2002).
100. See Nancy M. Kirschner, The Right to Financial Privacy Act of 1978-The Congressional Response to United States v. Miller: A Procedural Right to Challenge Government Access to Financial Records, 13 U. Mich. J.L. Reform 10, 24 (1979).
101. Passage of the DPPA was prompted by a series of high-profile cases in which stalkers or other criminal offenders obtained access to personal information of potential victims through routine inquiries at state departments of motor vehicles; this concern was heightened by the perception that a lucrative financial market existed for states to sell such information to private entities. See, e.g., Protecting Drive [sic] Privacy: Hearing on H.R. 3365 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 103d Cong. (1994) (statement of Janlori Goldman, Director, Privacy and Technology Project, American Civil Liberties Union), available at 1994 WL 212813.
102. FERPA "was perceived as a parental rights bill designed to halt government intrusion, " and its primary sponsor, Senator Buckley, "noted that the Watergate revelations had emphasized the dangers of government data gathering and the abuse of personal files. " Ellen M. Bush, The Buckley Amendment and Campus Police Reports (Aug. 8, 1992) (unpublished student conference paper), microformed on ERIC No. ED 351 677 (U.S. Dep't of Educ.).
103. See, e.g., CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 (2006) (creating penalties for bulk junk email).
104. Fair and Accurate Credit Transactions Act of 2003 and Identity Theft and Assumption Deterrence Act of 1998, 18 U.S.C. § 1028 (2006) (dealing with identity theft).
105. Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff (Supp. V 2011).
106. see also Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6809 (2006 & Supp. V 2011) (regulating the disclosure of data by financial institutions, among other things).
107. Children's Online Privacy Protection Act of 1998, 15 U.S.C. §§ 6501-6506 (2006) (passed specifically to deal with private entities' collection and exploitation of information about children's activities online).
108. Video Voyeurism Prevention Act of 2004, 18 U.S.C. § 1801 (2006) (targeted exclusively at criminalizing "upskirt" images). The statutory language reveals a particular focus on technological means of recording-covering "videotape, photograph, film, record... or broadcast. "
109. Michael Dolan, The Bork Tapes, Wash. City Paper, Sept. 25-Oct. 1, 1987, reproduced at http://www.theamericanporch.com/bork2.htm.
110. Michael Dolan, The Bork Tapes, Wash. City Paper, Sept. 25-Oct. 1, 1987, reproduced at http://www.theamericanporch.com/bork2.htm.
111. Michael Dolan, The Bork Tapes, Wash. City Paper, Sept. 25-Oct. 1, 1987, reproduced at http://www.theamericanporch.com/bork2.htm.
112. Michael Dolan, The Bork Tapes, Wash. City Paper, Sept. 25-Oct. 1, 1987, reproduced at http://www.theamericanporch.com/bork2.htm.
113. Maryland v. Macon, 472 U.S. 463, 466, 469 (1985) (rejecting heightened scrutiny for police officer's purchase of magazine from bookstore).
114. Zurcher v. Stanford Daily, 436 U.S. 547, 565-66 (1978) (rejecting argument for higher standard to seize material from newspaper office). But cf. In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., 26 Media L. Rep. (BNA) 1599, 1601 (D.D.C. 1998) (finding First Amendment interests superseded government interest in gaining access to patron's records).
115. Jennifer Elmore, Note, Effective Reader Privacy for Electronic Books: A Proposal, 34 Hastings Comm. & Ent. L.J. 127, 130-32 (2011). It may be that the lack of consensus about the library-records provision signaled the preference of privacy-protective legislators to leave the area untouched rather than explicity craft a law enforcement exemption.
116. Jennifer Elmore, Note, Effective Reader Privacy for Electronic Books: A Proposal, 34 Hastings Comm. & Ent. L.J. 127, 130-32 (2011). It may be that the lack of consensus about the library-records provision signaled the preference of privacy-protective legislators to leave the area untouched rather than explicity craft a law enforcement exemption.
117. E.g., Oliver v. United States, 466 U.S. 170, 179 (1984) (no expectation of privacy in open fields).
118. United States v. White, 401 U.S. 745, 749 (1971) (plurality opinion) (no expectation of privacy in conversations with informants).
119. See, e.g., California v. Ciraolo, 476 U.S. 207, 215 (1986) (aircraft).
120. Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (same).
121. United States v. Knotts, 460 U.S. 276, 285 (1983) (beepers).
122. United States v. Knotts, 460 U.S. 276, 285 (1983) (beepers).
123. Annual Message to the Congress on the State of the Union, 1 Pub. Papers 2, 6 (Jan. 10, 1967). This view was common in the early twentieth century.
124. See Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 199 (1966) (describing early interception statutes as concerned with "malicious injury").
125. Although initially enacted as a total bar on disclosure of such records absent patient consent, Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, Pub. L. No. 91-616, § 333, 84 Stat. 1848, 1853, subsequent amendments permit disclosure in limited circumstances, namely medical emergency, for scientific research if anonymized, and by court order on good cause where there is a need to avert death or serious bodily harm. See 42 U.S.C. § 290dd-2(b)(2) (2006).
126. H.R. Rep. No. 91-1663, at 18 (1970), reprinted in 1970 U.S.C.C.A.N. 5719, 5736. The statute was so enacted. See Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 § 333, 84 Stat. at 1853.
127. H.R. Rep. No. 91-1663, at 18 (1970), reprinted in 1970 U.S.C.C.A.N. 5719, 5736. The statute was so enacted. See Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 § 333, 84 Stat. at 1853.
128. H.R. Rep. No. 91-1663, at 18 (1970), reprinted in 1970 U.S.C.C.A.N. 5719, 5736. The statute was so enacted. See Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 § 333, 84 Stat. at 1853.
129. 18 U.S.C. § 1801(c).
130. 18 U.S.C. § 1801(c).
131. 18 U.S.C. § 1801(c).
132. See Nancy M. Kirschner, The Right to Financial Privacy Act of 1978-The Congressional Response to United States v. Miller: A Procedural Right to Challenge Government Access to Financial Records, 13 U. Mich. J.L. Reform 10, 24 (1979).
133. See Dep't of Health & Human Servs., Confidentiality of Individually-Identifiable Health Information: Recommendations of the Secretary of Health and Human Services, Pursuant to Section 264 of the Health Insurance Portability and Accountability Act of 1996, at II.E.9 (1997), available at http://epic.org/privacy/ medical/hhs_recommendations_1997.html ("We are not recommending any changes to existing legal constraints that govern access to or use of patient information by law enforcement agencies.").
134. The reason for this is perhaps clear. A quick review of those organizations' websites, some of which list congressional testimony, reveal a busy docket focused on issues exclusively related to criminal justice. See, e.g., Nat'l Ass'n Crim. Def. Law., Federal Action, http://www.nacdl.org/federalaction/ (last visited Oct. 12, 2012) (listing legislative priorities as crime labs and forensics reform, discovery reform, grand jury reform, indigent defense, national security, sentencing reform, sex offenses, street gangs, and white-collar crime).
135. The reason for this is perhaps clear. A quick review of those organizations' websites, some of which list congressional testimony, reveal a busy docket focused on issues exclusively related to criminal justice. See, e.g., Nat'l Ass'n Crim. Def. Law., Federal Action, http://www.nacdl.org/federalaction/ (last visited Oct. 12, 2012) (listing legislative priorities as crime labs and forensics reform, discovery reform, grand jury reform, indigent defense, national security, sentencing reform, sex offenses, street gangs, and white-collar crime).
136. The VPPA was enacted quickly in the wake of the Bork incident, and the bulk of the hearings were consumed either by the initial provisions of the bill that also would have protected library records or by the concerns of direct marketers. See Video and Library Privacy Protection Act of 1988: Joint Hearing Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary and the Subcomm. on Tech. & the Law of the S. Comm. on the Judiciary, 100th Cong. 123-25 (1989). For reasons unclear from the record, the FBI declined to testify with regard to the bill and instead promised to submit written comments, which never arrived.
137. Christopher Slobogin, Government Dragnets, Law & Contemp. Probs., Summer 2010, at 107, 131.
138. See Richard A. Posner, The Economics of Justice 299 (1981) (noting that "the general trend of legislative activity was to increase the privacy of individuals... and decrease that of business firms and other organizations" while acknowledging that "[t]he pattern is actually more complicated"). There are many distinctions that have been made between individual and entity privacy. For instance, a public corporation is typically heavily regulated, and must by law disclose a wide swath of information. Even a privately held company might have a broad array of legal obligations to disclose or publish certain information, or to make such information available to regulators. Moreover, privacy is typically justified by reference to the needs of personal autonomy, freedom from embarrassment or humiliation, or basic principles of liberty-none of which is as readily translated to the inanimate corporate context.
139. 131 S. Ct. 1177 (2011).
140. 12 U.S.C. § 3401(4) (2006).
141. 15 U.S.C. § 1681a(c)-(d) (2006).
142. 18 U.S.C. § 2510(6) (2006).
143. Joshua D. Blank, In Defense of Individual Tax Privacy, 61 Emory L.J. 265 (2011).
144. 18 U.S.C. §§ 2721-2725 (2006).
145. There are also some independent protections for corporate information like trade secrets, see, e.g., Economic Espionage Act of 1996, 18 U.S.C. §§ 1831-1839 (2006 & Supp. V 2011).
146. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
147. 42 U.S.C. § 1437z (2006) (emphasis added).
148. 42 U.S.C. § 1437z (2006) (emphasis added).
149. 42 U.S.C. § 1437z (2006) (emphasis added).
150. 42 U.S.C. § 1437z (2006) (emphasis added).
151. Prior to the passage of PRWORA, law enforcement could obtain private information only through the use of formal legal process. Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643, 668-69 (2009).
152. Pub. L. No. 104-193, 110 Stat. 2105.
153. 42 U.S.C. § 608(a)(9).
154. Anna Marie Smith, The Sexual Regulation Dimension of Contemporary Welfare Law: A Fifty State Overview, 8 Mich. J. Gender & L. 121, 145-47, 147 n.103 (2002).
155. Anna Marie Smith, The Sexual Regulation Dimension of Contemporary Welfare Law: A Fifty State Overview, 8 Mich. J. Gender & L. 121, 145-47, 147 n.103 (2002).
156. Prior to the passage of PRWORA, law enforcement could obtain private information only through the use of formal legal process. Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643, 668-69 (2009).
157. Joseph T. Bockrath, Annotation, Confidentiality of Records as to Recipients of Public Welfare, 54 A.L.R.3d 768 (1974 & Supp. 2012).
158. See 42 U.S.C. § 608(a)(9)(B).
159. 42 U.S.C. § 603(a)(5)(D)(ii), (J).
160. Prior to the passage of PRWORA, law enforcement could obtain private information only through the use of formal legal process. Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643, 668-69 (2009).
161. See James P. Nehf, Recognizing the Societal Value in Information Privacy, 78 Wash. L. Rev. 1, 43 (2003).
162. Prior to the passage of PRWORA, law enforcement could obtain private information only through the use of formal legal process. Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643, 668-69 (2009).
163. Prior to the passage of PRWORA, law enforcement could obtain private information only through the use of formal legal process. Kaaryn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643, 668-69 (2009).
164. Compare Samson v. California, 547 U.S. 843 (2006) (upholding warrantless, suspicionless searches of homes of conditional releases).
165. See Caroline Wolf Harlow, U.S. Dep't of Justice, NCJ 179023, Defense Counsel in Criminal Cases 5 (2000), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ dccc.pdf ("[A]bout 86% of those already on criminal justice status-for example, on pretrial release, probation, or parole... used appointed counsel.").
166. Steven K. Smith & Carol J. DeFrances, U.S. Dep't of Justice, NCJ-158909, Indigent Defense 1 (1996), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/id.pdf (reporting 80 percent indigency rate among those charged with felonies in the seventy-five largest counties in 1992).
167. James B. Jacobs & Dimitra Blitsa, Sharing Criminal Records: The United States, the European Union, and Interpol Compared, 30 Loy. L.A. Int'l & Comp. L. Rev. 125, 142 (2008) ("They can be obtained through three channels: (1) courts and court systems; (2) state criminal record repositories; and (3) private companies that sell information. While the statelevel repositories and the FBI's National Criminal Information Center (NCIC) restrict access to their criminal records, court records are open to the public as a matter of historical practice and constitutional common law. Private information companies mostly obtain criminal record information from courts and sell it to private customers. " (footnotes omitted).
168. James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 180-82 (2008) (describing array of "federal funding for the improvement and expansion of state criminal record keeping" along with federal analogues, including the National Instant Criminal Background Check System ("NICS"), the Interstate Identification Index ("III"), and the National Crime Information Center ("NCIC"), and the Integrated Automated Fingerprint Identification System ("IAFIS").
169. James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 180-82 (2008) (describing array of "federal funding for the improvement and expansion of state criminal record keeping" along with federal analogues, including the National Instant Criminal Background Check System ("NICS"), the Interstate Identification Index ("III"), and the National Crime Information Center ("NCIC"), and the Integrated Automated Fingerprint Identification System ("IAFIS").
170. Chris Jay Hoofnagle, Big Brother's Little Helpers: How ChoicePoint and Other Commercial Data Brokers Collect and Package Your Data for Law Enforcement, 29 N.C. J. Int'l L. & Com. Reg. 595 (2004).
171. James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. St. Thomas L.J. 387, 389-90 (2006).
172. James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 180-82 (2008) (describing array of "federal funding for the improvement and expansion of state criminal record keeping" along with federal analogues, including the National Instant Criminal Background Check System ("NICS"), the Interstate Identification Index ("III"), and the National Crime Information Center ("NCIC"), and the Integrated Automated Fingerprint Identification System ("IAFIS").
173. James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 180-82 (2008) (describing array of "federal funding for the improvement and expansion of state criminal record keeping" along with federal analogues, including the National Instant Criminal Background Check System ("NICS"), the Interstate Identification Index ("III"), and the National Crime Information Center ("NCIC"), and the Integrated Automated Fingerprint Identification System ("IAFIS").
174. James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 180-82 (2008) (describing array of "federal funding for the improvement and expansion of state criminal record keeping" along with federal analogues, including the National Instant Criminal Background Check System ("NICS"), the Interstate Identification Index ("III"), and the National Crime Information Center ("NCIC"), and the Integrated Automated Fingerprint Identification System ("IAFIS").
175. To be sure, state laws may regulate access to or use of criminal records-for instance, by sealing arrest histories or barring use of criminal records in employment decisions-but no federal mandate requires such provisions.
176. 42 C.F.R. § 431.306 (2012) (describing federal standards for release of information, which includes a policy to safeguard the information).
177. Khiara M. Bridges, Privacy Right and Public Families, 34 Harv. J.L. & Gender 113 (2011) (describing highly intrusive information gathering performed as a condition of public assistance for state prenatal care). To be clear, the Constitution does not fare much better.
178. Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 Fla. L. Rev. 391, 401-05 (2003).
179. They are specifically covered by the Privacy Act, including the Computer Matching and Privacy Protection Act Amendments of 1988, which otherwise does not apply to the states. See George B. Trubow, Protecting Informational Privacy in the Information Society, 10 N. Ill. U. L. Rev. 521, 526 (1990).
180. They are specifically covered by the Privacy Act, including the Computer Matching and Privacy Protection Act Amendments of 1988, which otherwise does not apply to the states. See George B. Trubow, Protecting Informational Privacy in the Information Society, 10 N. Ill. U. L. Rev. 521, 526 (1990).
181. See 34 C.F.R. § 5b.9(b)(7) (2012) (allowing such disclosure to a government agency without consent if "the activity is authorized by law, and if the... agency... has submitted a written request... specifying the record desired and the law enforcement activity for which the record is sought").
182. See generally Agnes Gesiko, The Protection of Taxpayer's [sic] Federal Tax Return Information in the Internet Age-Is Tax Return Information Being Afforded Proper Confidentiality and Privacy Protections?, 62 Tax Law. 175 (2008) (detailing authorized disclosures and noting strict policies limiting transfer of covered material, requiring destruction or return after use, and imposing criminal and civil penalties on violators).
183. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
184. Such programs include the following: [T]he refundable portion of the earned-income and child tax credits, which assist lowand moderate-income working families through the tax code; programs that provide cash payments to eligible individuals or households, including Supplemental Security Income for the elderly or disabled poor and unemployment insurance; various forms of in-kind assistance for low-income families and individuals, including food stamps, school meals, low-income housing assistance, child-care assistance, and assistance in meeting home energy bills; and various other programs such as those that aid abused and neglected children. Policy Basics: Where Do Our Federal Tax Dollars Go?, Center on Budget & Pol'y Priorities, http://www.cbpp.org/cms/index.cfm?fa=view&id=1258 (last updated Aug. 13, 2012).
185. Such programs include the following: [T]he refundable portion of the earned-income and child tax credits, which assist lowand moderate-income working families through the tax code; programs that provide cash payments to eligible individuals or households, including Supplemental Security Income for the elderly or disabled poor and unemployment insurance; various forms of in-kind assistance for low-income families and individuals, including food stamps, school meals, low-income housing assistance, child-care assistance, and assistance in meeting home energy bills; and various other programs such as those that aid abused and neglected children. Policy Basics: Where Do Our Federal Tax Dollars Go?, Center on Budget & Pol'y Priorities, http://www.cbpp.org/cms/index.cfm?fa=view&id=1258 (last updated Aug. 13, 2012).
186. See 18 U.S.C. § 2721(b) (2006) (obligating disclosure for motor vehicle-related matters, but simply allowing it under other circumstances).
187. See 18 U.S.C. § 2721(b) (2006) (obligating disclosure for motor vehicle-related matters, but simply allowing it under other circumstances).
188. See 18 U.S.C. § 2721(b) (2006) (obligating disclosure for motor vehicle-related matters, but simply allowing it under other circumstances).
189. Christopher Slobogin, Government Dragnets, Law & Contemp. Probs., Summer 2010, at 107, 131.
190. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
191. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
192. See 18 U.S.C. § 2721(b) (2006) (obligating disclosure for motor vehicle-related matters, but simply allowing it under other circumstances).
193. Each responded to the Court, but in different ways: Title III was enacted in response to the Supreme Court's findings in Katz v. United States, 389 U.S. 347 (1967).
194. Each responded to the Court, but in different ways: Title III was enacted in response to the Supreme Court's findings in Katz v. United States, 389 U.S. 347 (1967).
195. Risa Berkower, Note, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 Fordham L. Rev. 2251, 2252, 2270-71 (2005).
196. Risa Berkower, Note, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 Fordham L. Rev. 2251, 2252, 2270-71 (2005).
197. See generally Richard Cordero, Annotation, Construction and Application of Right to Financial Privacy Act of 1978, 112 A.L.R. Fed. 295 (1993) (referring to section 3408 in only one small entry).
198. See generally Richard Cordero, Annotation, Construction and Application of Right to Financial Privacy Act of 1978, 112 A.L.R. Fed. 295 (1993) (referring to section 3408 in only one small entry).
199. See generally Richard Cordero, Annotation, Construction and Application of Right to Financial Privacy Act of 1978, 112 A.L.R. Fed. 295 (1993) (referring to section 3408 in only one small entry).
200. 15 U.S.C. § 1681f (2006).
201. 15 U.S.C. § 6502(b)(2)(E)(iv).
202. 5 U.S.C. § 552a(b)(7) (2006).
203. The optional nature of compliance allows proponents of administrative subpoena authority to view it as simply allowing the government to bypass cumbersome procedures to obtain information that already is routinely accessed using grand jury subpoenas. However, opponents view it as an end run around the probable cause, particularity, and neutrality standards embodied by the Fourth Amendment, and warn against expanding the categories beyond narrow fields in which limited records would prove relevant (for instance "health fraud" versus "any fraud"). See, e.g., Jameel Jaffer, Panel Report: Secret Evidence in the Investigative Stage: FISA, Administrative Subpoenas, and Privacy, 5 Cardozo Pub. L. Pol'y & Ethics J. 7 (2006).
204. See, e.g., 15 U.S.C. § 1681b(a)(1).
205. Doe v. Ashcroft, 334 F. Supp. 2d 471, 481 (S.D.N.Y. 2004).
206. Doe v. Ashcroft, 334 F. Supp. 2d 471, 481 (S.D.N.Y. 2004).
207. See U.S. Const. amend. VI.
208. Fed. R. Crim P. 17.
209. Nixon v. Sirica (In re Grand Jury Proceedings), 487 F.2d 700, 737 (D.C. Cir. 1973) ("[J]udicial subpoenas seek information in aid of the power to adjudicate controversies between individual litigants in a single civil or criminal case. ").
210. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
211. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
212. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
213. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
214. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
215. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
216. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
217. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
218. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
219. R. Enters., Inc., 498 U.S. at 296-300 (referencing subpoena process and relevancy standard for trial and grand jury subpoenas). Many statutes also authorize law enforcement access via a court order, but a court order is by its nature almost always a higher threshold than a subpoena because it requires the express approval of a judicial official. However, because an investigator can petition a court for an order even in the absence of an ongoing formal proceeding or grand jury investigation, it might in some cases be a preferable vehicle for obtaining information.
220. 42 U.S.C. § 2000aa(c) (2006).
221. 45 C.F.R. § 164.512(f) (2012).
222. 45 C.F.R. § 164.512(f) (2012).
223. 18 U.S.C. § 2721(a)(2).
224. See, e.g., 12 U.S.C. § 3409 (2006) (RFPA); 20 U.S.C. § 1232g(b)(1)(J) (FERPA).
225. As Congressman John LaFalce stated in opposition to those provisions, "Restricting the use of lawfully acquired information to the original purpose for which it was obtained is contrary to established legal principles found both in case law and the Privacy Act of 1974. The generally applicable rule is that, once the privacy interest in records has been legitimately breached... unanticipated information in such records... may be used by law enforcement authorities. " H.R. Rep. No. 95-1383, at 212 (1978), reprinted in 1978 U.S.C.C.A.N. 9273, 9343.
226. 18 U.S.C. § 2710(e) (2006).
227. 18 U.S.C. § 2710(e) (2006).
228. 18 U.S.C. § 2710(e) (2006).
229. 20 U.S.C. § 1232g(b)(1)(E)(ii)(II).
230. Improving America's Schools Act of 1994 § 249, 20 U.S.C. § 1232g(b)(4)(B).
231. 47 U.S.C. § 551(e) (2006).
232. The constitutional law governing the acquisition of evidence through a subpoena duces tecum stands somewhat in opposition to the law governing the acquisition of evidence through physical search and seizure. Whereas a search is governed by Fourth Amendment law, with minimal to nonexistent Fifth Amendment protection, a subpoena is largely regulated through the Fifth Amendment and left only lightly regulated by the Fourth Amendment. See Andresen v. Maryland, 427 U.S. 463 (1976) (holding that the Fifth Amendment was not implicated, and the Fourth Amendment not violated, by search warrant resulting in seizure of business documents).
233. Hale v. Henkel, 201 U.S. 43, 74-76 (1906) (holding that Fourth Amendment did not automatically prohibit subpoena duces tecum issued to corporate officer, but invalidating issued subpoena as unreasonably broad). The Court has not wholly disclaimed application of the Fourth Amendment to subpoena processes; those cases suggest that only the barest regulation applies. However, one source of uncertainty lies in the fact that most cases involve the subpoena or seizure of business, and not personal, documents: Without attempting to summarize or accurately distinguish all of the cases, the fair distillation, in so far as they apply merely to the production of corporate records and papers in response to a subpoena or order authorized by law and safeguarded by judicial sanction, seems to be that the Fifth Amendment affords no protection by virtue of the selfincrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.
234. 2 Wayne La Fave, Search and Seizure § 4.13(a) (4th ed. 2004) ("Although the Supreme Court has stated in dicta that the Fourth Amendment continues to limit the subpoena power of the government, the Court has rejected Fourth Amendment objections to subpoenas in every case it has decided in modern times. "). The Fifth Amendment only comes into play for personal papers sought from the suspect herself, which while not themselves protected, may be protected from compelled production. United States v. Doe, 465 U.S. 605 (1984) (subpoena).
235. See, e.g., See v. City of Seattle, 387 U.S. 541, 545 (1967).
236. United States v. Powell, 379 U.S. 48, 57 (1964) (administrative subpoena by IRS did not require probable cause standard).
237. United States v. Morton Salt Co., 338 U.S. 632, 641-42 (1950) (distinguishing judicial subpoena power, which "extends only to adjudication of cases and controversies and... [whose] investigative powers should be jealously confined to these ends, " from administrative subpoena, which has more inquisitorial power).
238. See Berta Esperanza Hernández, RIP to IRP-Money Laundering and Drug Trafficking Controls Score a Knockout Victory over Bank Secrecy, 18 N.C. J. Int'l L. & Com. Reg. 235, 246 n.78 (1993).
239. See Orin S. Kerr, Lifting the "Fog" of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 Hastings L.J. 805, 837 n.154 (2003).
240. And, of course, per Mapp v. Ohio, 367 U.S. 643 (1961).
241. And, of course, per Mapp v. Ohio, 367 U.S. 643 (1961).
242. E.g., 47 U.S.C. § 551(f)(3) (2006).
243. 12 U.S.C. § 3417(d) (2006) ("The remedies and sanctions described in this chapter shall be the only authorized judicial remedies and sanctions for violations of this chapter. "); see, e.g., United States v. Kington, 801 F.2d 733, 737 (5th Cir. 1986).
244. 18 U.S.C. § 2708 (2006) ("The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter. "). The Pen Register Act has also been interpreted to reject exclusion, see, e.g., United States v. Thompson, 936 F.2d 1249 (11th Cir. 1991).
245. 42 U.S.C. § 2000aa-6(d) (2006).
246. In addition, the language prescribing a statutory exclusionary remedy is of particular importance because violations of state constitutional law do not necessarily require suppression of evidence in federal court, whereas a federal statute can effectively bar introduction of evidence in any court. See Kenneth J. Melilli, Exclusion of Evidence in Federal Prosecutions on the Basis of State Law, 22 Ga. L. Rev. 667, 713 (1988) (noting that although "silver platter doctrine" and Mapp forbid introduction of evidence seized unlawfully under the Fourth Amendment, regardless of court or seizing officer, most circuits have interpreted Elkins as allowing introduction of evidence in federal court seized only in violation of state law).
247. See, e.g., Steven House, DWI, Champion, Aug. 2007, at 46, 50.
248. See, e.g., United States v. Elliott, 676 F. Supp. 2d 431, 439 (D. Md. 2009).
249. State v. Mubita, 188 P.3d 867, 874 (Idaho 2008).
250. See, e.g., United States v. Bunnell, No. CRIM.02-13-B-S, 2002 WL 981457, at *4 (D. Me. May 10, 2002).
251. See, e.g., United States v. Davis, 657 F. Supp. 2d 630, 663 (D. Md. 2009), aff'd, 690 F.3d 226 (4th Cir. 2012).
252. See, e.g., United States v. Edgar, 82 F.3d 499 (1st Cir. 1996).
253. Cf. Word v. United States, 604 F.2d 1127, 1129-30 (8th Cir. 1979).
254. See, e.g., United States v. Orlando, 281 F.3d 586, 596 (6th Cir. 2002) ("The exclusionary rule is therefore inapplicable to the present case, because any purported violation of § 6103 did not infringe upon Daniels's constitutional rights. ").
255. Nowicki v. Comm'r, 262 F.3d 1162, 1164 (11th Cir. 2001).
256. United States v. Michaelian, 803 F.2d 1042, 1046-48 (9th Cir. 1986).
257. Marvin v. United States, 732 F.2d 669, 672-73 (8th Cir. 1984).
258. See, e.g., 18 U.S.C. § 2712(a) (2006) (civil remedy for willful violations of both SCA and certain provisions of FISA).
259. See, e.g., Doe v. Chao, 540 U.S. 614 (2004) (holding that the Privacy Act allows recovery for only actual damages, and therefore denying $1,000 award to claimant who successfully showed that Department of Labor improperly disclosed Social Security number).
260. E.g., Title III, 18 U.S.C. § 2529(d).
261. RFPA, 12 U.S.C. § 3417(c).
262. Courts may also interpret law enforcement reliance on statutory provisions later ruled unconstitutional to constitute "good faith, " and thus preclude recovery. See, e.g., United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012) (holding that even if police acquisition of cell-site data were unconstitutional, police acted in good-faith reliance on SCA).
263. A range of immunity doctrines can impede recovery. Suits against the government require either a federal cause of action (like section 1983 or Bivens) or a state analogue. A state may have sovereign immunity, and a locality's immunity can be limited by requirements that plaintiffs show a policy, custom, or failure to train with deliberate indifference. Suits against persons in their official capacity raise the specter of qualified immunity if their actions did not, at the time, violate clearly established law. However, it should be noted that federal privacy statutes may at times serve as the basis for a claim raised under state law, even where federal law might be unavailing.
264. E.g., Daniel v. Cantrell, 375 F.3d 377, 383-84 (6th Cir. 2004) (dismissing VPPAbased claims against law enforcement officers who obtained video rental records, noting that statute allowed recovery against only the video rental providers). Of course, such a provision particularly matters in the absence of an exclusionary rule, since a defendant whose information is improperly disclosed by a third party relying on law enforcement representations may have neither a route for civil redress (due to the third party's good-faith defense, and the lack of a cause of action against the officer) nor one for criminal redress (because the exclusionary rule does not apply).
265. E.g., RFPA, 12 U.S.C. § 3417(b).
266. Children's Online Privacy Protection Act of 1998 § 1306, 15 U.S.C. § 6505 (2006) (no private right of action under COPPA).
267. Gonzaga Univ. v. Doe, 536 U.S. 273, 276-91 (2002) (FERPA does not give rise to private right of action).
268. Accara v. Banks, 470 F.3d 569 (5th Cir. 2006) (per curiam) (no private cause of action under HIPAA).
269. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
270. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
271. E.g., Privacy Act § 3, 5 U.S.C. § 552a(i) (2006).
272. Fair Credit Reporting Act § 619, 15 U.S.C. § 1681q.
273. Electronic Communications Privacy Act of 1986 § 802, 18 U.S.C. § 2511 (2006).
274. Driver's Privacy Protection Act of 1994 § 300002(a), 18 U.S.C. § 2723.
275. Health Insurance Portability and Accountability Act of 1996 § 262(a), 42 U.S.C. § 1320d-6 (2006 & Supp. V 2011); 42 U.S.C. § 14135e (2006).
276. Right to Financial Privacy Act of 1978 § 1117, 12 U.S.C. § 3417.
277. Privacy Protection Act of 1980 § 106, 42 U.S.C. § 2000aa-6 (2006).
278. Of course, there is much academic debate regarding the actual effectiveness of exclusion, but in principle the doctrine provides both an incentive for law enforcement to conform its behavior to the constitutional standard as well as a mechanism for law creation, norm setting, and public transparency.
279. Professor Kerr's analysis was most directly addressed in Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 748, 760-77 (2005), but a handful of other scholars have also weighed in on specific aspects of this debate.
280. Paul M. Schwartz, Privacy and Participation: Personal Information and Public Sector Regulation in the United States, 80 Iowa L. Rev. 553, 595 (1995).
281. 18 U.S.C. § 2723(b).
282. 45 C.F.R. § 164.408(d) (2012) (HIPAA).
283. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1632-33 (1999).
284. 20 U.S.C. § 1232g(b)(4).
285. 20 U.S.C. § 1232g(b)(4).
286. Stephen W. Mazza, Taxpayer Privacy and Tax Compliance, 51 U. Kan. L. Rev. 1065, 1095 (2003).
287. 5 U.S.C. §§ 552a(u), 552a(s) (2006).
288. Note that COPPA did require a five-year report to Congress. 15 U.S.C. § 6506 (2006).
289. Section 552a(s) contains the original provision, but this requirement "cease[d] to be effective" on May 15, 2000. Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, § 3003(a)(1), 109 Stat. 707, 733, reprinted as amended in 31 U.S.C. § 1113 note at 197 (2006). Agencies still must submit reports under the Computer Matching and Privacy Protection portion of the Privacy Act.
290. See 12 U.S.C. § 3421 (1988) (repealed 1995).
291. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). It is also unsatisfying as of late as the Supreme Court appears committed to dramatically curtailing its applicability.
292. Hudson v. Michigan, 547 U.S. 586 (2006).
293. See, e.g., William J. Stuntz, The Collapse of American Criminal Justice 216-43 (2011).
294. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1632-33 (1999).
295. See Nancy M. Kirschner, The Right to Financial Privacy Act of 1978-The Congressional Response to United States v. Miller: A Procedural Right to Challenge Government Access to Financial Records, 13 U. Mich. J.L. Reform 10, 24 (1979).
296. Cf. Printz v. United States, 521 U.S. 898 (1997) (invalidating federal law that "commandeered" state officers for background checks on firearm purchasers).
297. New York v. United States, 505 U.S. 144 (1992) (striking federal act as violative of Tenth Amendment).
298. Cf. United States v. Morrison, 529 U.S. 598 (2000) (invalidating provision of Violence Against Women Act of 1994 that provided civil remedy for violation as insufficiently justified by Commerce Clause or Fourteenth Amendment).
299. United States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free School Zones Act of 1990 as insufficiently justified under Commerce Clause).
300. See generally Elaine Vullmahn, Comment, Firearm Transaction Disclosure in the Digital Age: Should the Government Know What Is in Your Home?, 27 J. Marshall J. Computer & Info. L. 497, 503 (2010).
301. 528 U.S. 141, 147-48 (2000).
302. Condon, 528 U.S. at 150-51.
303. See, e.g., Foxworth v. Trustmark Nat'l Bank, 934 F. Supp. 218, 223 (S.D. Miss. 1996) (remanding lawsuit based on state law claims back to state court and rejecting bank's argument of preemption).
304. In re Grand Jury Subpoena (Conn. Sav. Bank), 481 F. Supp. 833, 834-35 (D. Conn. 1979) (finding state law requiring notice preempted by RFPA). But see In re Grand Jury Subpoena, 41 F. Supp. 2d 1026, 1035-37 (D. Alaska 1999) (reconciling federal and state law, but noting remaining confusion since it would impose additional procedural burden on U.S. Attorney to seek delay of notice in order to comply with state statute).
305. 18 U.S.C. § 2710(f) (2006).
306. 42 U.S.C. § 1320d-7 (2006).
307. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, § 264(c)(2), 110 Stat. 1936, 2033-34 (1996) (codified as note to 42 U.S.C. § 1320d-2 (2006) ("A regulation promulgated under paragraph (1) shall not supersede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation. "); 45 C.F.R. § 160.203 (2012).
308. The Wiretap Act is commonly interpreted to preempt less protective state laws. See Richard C. Turkington, Protection for Invasions of Conversational and Communication Privacy by Electronic Surveillance in Family, Marriage, and Domestic Disputes Under Federal and State Wiretap and Store Communications Acts and the Common Law Privacy Invasion Tort, 82 Neb. L. Rev. 693, 704 (2004).
309. 20 U.S.C. § 1232g(i)(2) (2006) (regarding drug and alcohol disclosures).
310. 47 U.S.C. § 552(d) (2006).
311. 15 U.S.C. § 6807 (2006).
312. 18 U.S.C. § 2703(d) (2006).
313. 15 U.S.C. § 1681t.
314. 15 U.S.C. § 1681t.
315. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1609, 1632-33 (1999).
316. Grace Ko, Note, Partial Preemption Under the Health Insurance Portability and Accountability Act, 79 S. Cal. L. Rev. 497, 501 (2006).
317. Sarah Beatty Ratner, HIPAA's Preemption Provision Doomed Cooperative Federalism, 35 J. Health L. 523, 524, 536 (2002).
318. Compare Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004) (quashing subpoena on ground of undue burden on hospital when weighed against patient privacy and limited probative value, but otherwise finding Illinois patient privilege inapplicable in federal question suits like the one at issue), with Nat'l Abortion Fed'n v. Ashcroft, No. 03 Civ. 8695(RCC), 2004 WL 555701, at *6 (S.D.N.Y. Mar. 19, 2004) (finding that HIPAA did not incorporate state privacy statute that was more stringent than federal standard and thus disclosure of medical records was permitted under federal evidence rules, which do not require compliance with state privacy law).
319. See generally Margaret L. O'Donnell, FERPA: Only a Piece of the Privacy Puzzle, 29 J.C. & U.L. 679, 680-85, 698-99 (2003).
320. See Leonard Deutchman & Sean Morgan, The ECPA, ISPs & Obtaining E-mail: A Primer for Local Prosecutors, Am. Prosecutors Res. Inst., 6 (Jul. 2005), http://www.ndaa.org/pdf/ecpa_isps_obtaining_email_05.pdf ("Because there is a difference between the Fourth Amendment rights protected under Title III and the statutorily-created rights found in the SCA provisions of the ECPA, and because the preemption language of Section 2516 so clearly applies solely to Title III, it can be argued that federal law regarding stored electronic communication (e-mail) does not preempt and control state law as does federal wiretap law.").
321. Patricia L. Bellia, Feature, Federalization in Information Privacy Law, 118 Yale L.J. 868, 887-89 (2009).
322. Patricia L. Bellia, Feature, Federalization in Information Privacy Law, 118 Yale L.J. 868, 887-89 (2009).
323. Patricia L. Bellia, Feature, Federalization in Information Privacy Law, 118 Yale L.J. 868, 887-89 (2009).
324. Patricia L. Bellia, Feature, Federalization in Information Privacy Law, 118 Yale L.J. 868, 887-89 (2009).
325. Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (holding that the First Amendment press right did not block execution of a warrant).
326. United States v. Miller, 425 U.S. 435 (1976) (holding that financial records handed over to a third-party financial institution receive no Fourth Amendment protection).
327. Patricia L. Bellia, Feature, Federalization in Information Privacy Law, 118 Yale L.J. 868, 887-89 (2009).
328. Kenneth A. Bamberger & Deirdre K. Mulligan, Privacy on the Books and on the Ground, 63 Stan. L. Rev. 247, 250-51 (2011) (comparing American model with the "model of protection adopted throughout Europe: omnibus [Fair Information Practices Principles]-based privacy principles in law or binding codes, interpreted and monitored by... [an] independent privacy agency").
329. Lior Jacob Strahilevitz, Reunifying Privacy Law, 98 Calif. L. Rev. 2007, 2034 n.108 (2010) (amassing examples of "ECPAbashing").
330. "[I]n construing the scope of the Act, this Court must strive to protect this aspect of an individual's right to privacy in the face of technological innovations that threaten this fundamental right. " Dirkes v. Borough of Runnemede, 936 F. Supp. 235, 239 (D.N.J. 1996).
331. Of course, an empirical determination of which remedy is more effective is beyond the scope of this Article.
332. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 805, 857-87 (2004).
333. As I explain in a manuscript currently in progress, many contemporary tools of criminal justice (such as DNA, drug analysis machines, and even computer software) rely upon the development of materials and instruments by the private sector.
334. See generally Ian Herbert, Where Are We with Location Tracking: A Look at the Current Technology and the Implications on Fourth Amendment Jurisprudence, 16 Berkeley J. Crim. L. 442 (2011) (describing companies behind GPS tracking devices).
335. See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011).
336. Herring v. United States, 555 U.S. 135 (2009).
337. In this respect, my focus on privacy is more as a nominal idea that is the product of legal processes that shift and reconfigure over time-most particularly, as the previous Part tells us, from an exclusively constitutional or judicial category to something in which legislative enactments also play a role-than as a substantive set of rules or restrictions.
338. Several models of such cooperative rule elaboration have been proposed over time. See, e.g., 1 Bruce Ackerman, We the People: Foundations 5 (1991).
339. Alexander M. Bickel, The Least Dangerous Branch (2d ed. 1986).
340. Cass R. Sunstein, One Case at a Time (1999).
341. Peter P. Swire, Correspondence, Katz is Dead. Long Live Katz., 102 Mich. L. Rev. 904, 913-14, 919-20 (2004).
342. Katz v. United States, 389 U.S. 347, 353-56 (1967).
343. Berger v. New York, 388 U.S. 41, 54-56 (1967).
344. United States v. Miller, 425 U.S. 435, 442-43 (1976). The Privacy Protection Act of 1980 perhaps offers an example of the principle at work, although in a counterintuitive fashion, as there the legislature decided to enhance the threshold imposed by the Constitution.
345. City of Chicago v. Morales, 527 U.S. 41 (1999).
346. Dickerson v. United States, 530 U.S. 428 (2000) (invalidating a statute intended to override the ruling that created the Miranda warnings for suspects).
347. Dickerson v. United States, 530 U.S. 428 (2000) (invalidating a statute intended to override the ruling that created the Miranda warnings for suspects).
348. 428 U.S. 364 (1976).
349. 495 U.S. 1 (1990) (invalidating under inventory-search exception a search in which closed containers were opened because the jurisdiction lacked a policy concerning the opening of containers).
350. Wells, 495 U.S. at 4-5.
351. Peter P. Swire, Correspondence, Katz is Dead. Long Live Katz., 102 Mich. L. Rev. 904, 913-14, 919-20 (2004).
352. Akin to Rick Hills's suggestion that state laws can prompt business interests to put topics on the federal agenda because those interests seek federal preemption, Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 19-20 (2007), judicial rulings can similarly prompt law enforcement to put topics on the federal agenda for the same reason.
353. 132 S. Ct. 945, 954-57 (Sotomayor, J., concurring).
354. Jones, 132 S. Ct. at 956-57.
355. Jones, 132 S. Ct. at 956-57.
356. Peter Swire & Erin Murphy, How to Address "Standardless Discretion" After Jones, Soc. Sci. Res. Network (June 4, 2012), http://ssrn.com/abstract=2122941.
357. Peter Swire & Erin Murphy, How to Address "Standardless Discretion" After Jones, Soc. Sci. Res. Network (June 4, 2012), http://ssrn.com/abstract=2122941.
358. Precisely the complaint, it should be noted, that Justice Alito's concurrence made of Justice Scalia's plurality determination to use state-based common law to define the scope of constitutional protection in Jones. 132 S. Ct. at 961-62 (Alito, J., concurring in the judgment).
359. Precisely the complaint, it should be noted, that Justice Alito's concurrence made of Justice Scalia's plurality determination to use state-based common law to define the scope of constitutional protection in Jones. 132 S. Ct. at 961-62 (Alito, J., concurring in the judgment).