Cybersurveillance without restraint? The meaning and social value of the probable cause and reasonable suspicion standards in governmental access to third-party electronic records.

• Author: Taslitz, Andrew E.
• Position: ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records - I. Introduction through III. The Meaning and Social Value of Probable Cause and Reasonable Suspicion A. The Quantitative Element: Standards of Proof 3. The Flaws in Kerr's Argument Against Having a Probable Cause Standard of Proof iii. The Representativeness ...

1. INTRODUCTION

   The United States Supreme Court has created a general Fourth Amendment principle--the "third-party doctrine"--that leaves information in the hands of third parties unprotected by that Amendment. (1) Yet in an electronic age, increasingly more information concerning personal matters is held by third parties--from banks to insurance companies, Internet service providers, and credit card companies--in readily accessible electronic databases. (2) The American Bar Association has sought to fill this void in criminal cases by adopting its Standards on Law Enforcement Access to Third Party Records. (3) The Standards set out a template for regulating government access to institutional third-party records in criminal investigations. (4) These standards are novel, marking the first time that a well-respected legal organization has provided a template for drafting statutes at the state and federal level to govern this area. (5)

   The Standards provide numerous protections and procedures, (6) but among them is a sliding scale of levels of justification--probable cause, reasonable suspicion, and mere relevance (7)--as well as variations in who must make these determinations (courts versus law enforcement). (8) The justification levels vary with the degree of privacy protection a particular record deserves. (9) These justification provisions would, however, change much of the current law. (10) Indeed, the internal debates in the task force that prepared the initial drafts (the "drafting committee") were most fierce concerning this single issue. (11) Law enforcement members were vehemently opposed to any justification requirement whatsoever, predicting that criminal investigations in serious cases would be rendered virtually impossible. The judge, defense lawyers, and law professors on the drafting committee, however, saw some level of justification as essential to prevent governmental overreaching--to regulate, without prohibiting, legitimate law enforcement work.

   So strong were law enforcement's objections that the early drafting committee efforts concerning levels of justification were substantially watered-down. This dilution first occurred within the drafting committee, then in the Standards Committee that reviews the drafting committee's work, and later still in the Criminal Justice Section Council that had the final word before sending the Standards to be ratified by the ABA House of Delegates--which they ultimately were. For example, jurisdictions were left with freedom to have reasonable suspicion, not probable cause, as the maximum level of justification required for certain highly private records. (12) Moreover, the Council insisted on a provision declaring that the standards would not alter traditional grand jury practice, essentially leaving current subpoena practice (requiring barely any level of justification) untouched. (13)

   The general scheme of varying levels of required justification used by the drafting committee--though not the details--stemmed from the work of leading Fourth Amendment commentator Christopher Slobogin. (14) Importantly, however, the idea of a sliding scale model of justification levels--though not embracing necessarily the same levels of justification as does Slobogin--is not limited to the Standards. There are a host of federal and state privacy statutes that already provide some limited justification-standard protections for some searches of third-party records in some circumstances. (15) Critics have argued for moving these protections up a notch, that is, for example, to require probable cause for all government access to stored e-mail content. (16) But these efforts, as with similar intra-drafting-committee efforts, have sparked intense law enforcement opposition. (17) The wisdom of the Standards' sliding scale model thus has wide significance for current law and future legal developments.

   One member of the drafting committee, Professor Paul Ohm, has published an article rejecting Slobogin's premise that levels of justification matter and have practical significance in the area of electronic evidence in criminal cases. (18) Ohm argues that it is so easy to establish probable cause in most criminal investigations involving e-mail or the Internet that law enforcement objections have not been justified. Ohm argues, therefore, that there is no need for a sliding scale because probable cause will usually exist and that it alone provides too little protection in an electronic age. (19) Although Ohm's view undercuts much of law enforcement's standard antijustification (whether probable cause or reasonable suspicion) position, Ohm does not clearly argue for increasing (or decreasing) the standard for probable cause, redefining it, or replacing it. Instead, he merely suggests at several points that probable cause in this area is so easy to prove and of so little value in restraining government and protecting privacy that law reform efforts should shift to other areas. (20) Probable cause and reasonable suspicion can usually simply be ignored.

   But Ohm concedes that there are still instances--though he believes relatively few ones--in which Internet and e-mail investigations will be amenable to regulation by standards of justification like probable cause and reasonable suspicion. (21) Whether these instances will in fact be as rare as Ohm argues is subject to dispute. (22) Furthermore, the Standards themselves address some important situations, such as obtaining medical information or acting where First Amendment free speech concerns may be implicated, that merit high levels of protection even if they occur infrequently. (23) Moreover, Ohm focuses on cybercrime investigations rather than investigations of ordinary crimes (e.g., murder, rape, robbery) that may nevertheless leave a digital trail (24)--but he does not limit his claims to cybercrimes. (25) Yet the latter sort of evidence should become increasingly important as technology advances. He simply underemphasizes the different issues ordinary crimes raise. But ordinary crimes leaving digital trails are often far less likely than cybercrimes to leave themselves open to easy proof of probable cause or even reasonable suspicion. (26)

   Perhaps most importantly, however, Ohm does not explore in a more theoretical way the meaning and social value of the two main standards of justification--probable cause and reasonable suspicion. I agree with Ohm that many protections are required other than standards of justification. But standards of justification can still serve important social goals, even in Internet investigations, that should not be slighted. Moreover, the two major justification standard terms ("probable cause" and "reasonable suspicion") are rarely defined with any specificity. Part of the ease of meeting them may be the ambiguity in definition and the signals that these definitions send that they do not place much of a proof burden on law enforcement.

   This Article seeks to fill this gap by exploring whether the key justification standards can be more specifically defined, what those definitions should be, and what social value the standards serve. The Article applies the results of this exploration to the ABA Standards, explaining whether they are justified as is or whether another course of action concerning levels of justification would have been more desirable.

   A few qualifications are in order. I limit my analysis to targeted investigations, that is, the search for a particular person as the perpetrator of a crime or of a particular place believed connected to a known criminal event. (27) I therefore do not address "general search[es]," those occurring where "the government is trying to solve, prevent or deter as-yet undetected or perpetrated crime through surveillance of the general population or a subset of it....," (28) Many of the comments made here have implications beyond targeted investigations, but space prevents me from addressing them here.

   Part II of this Article briefly summarizes the provisions and history of the ABA Standards. Those Standards are the jumping-off point for a fuller exploration of the meanings of probable cause and reasonable suspicion.

   In two earlier articles, I identified the several aspects of justification standards like probable cause and reasonable suspicion. (29) Those articles did not, however, fully develop two of those aspects that I now address in depth: (1) The quantitative--how probable must it be that evidence of crime will be found in possession of the third party? (2) The qualitative--how trustworthy must the evidence be upon which law enforcement relies in finding the relevant standard met? (30) Here, in Part III, I will necessarily touch on all aspects of probable cause and reasonable suspicion because they are interrelated. But my primary focus in Part III will be on aspects (1) and (2): the quantitative and the qualitative. Concerning the quantitative, Parts III.A. 1 to 2 respond to arguments that it is more socially beneficial entirely to avoid setting a quantitative standard of proof for probable cause and reasonable suspicion. Part III.A.3 explains why, contrary to the claims of critics, cognitive biases are not enhanced by identifying a specific standard of proof, but such specification would appropriately limit law enforcement discretion. Perhaps more importantly, Part III.A.4 explains that the critics have wrongly assumed an objective notion of probability (how often are...