The politics of privacy in the criminal justice system: information disclosure, the Fourth Amendment, and statutory law enforcement exemptions.

• Author: Murphy, Erin E.
• Position: Introduction through I. Statutory Privacy: Methodology and Observations E. Protection Focuses on Individuals, Not Entities, and Especially Members of the Economic Mainstream, p. 485-514

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards-ranging from warrants and court orders to subpoenas and demand letters. But across this remarkable diversity, there is one feature that all these statutes share in common: each contains a provision exempting law enforcement from its general terms.

Despite the appearance of law enforcement exemptions in every generally applicable privacy statute on the federal books, they have garnered virtually no scholarly attention. Privacy scholars have primarily busied themselves with mainstream consumer interests, while criminal justice scholars have chiefly focused on the Fourth Amendment. As a result, these exemptions have gone largely unexamined even as scholars and courts increasingly look to statutory resolutions of Fourth Amendment questions. For example, at least four Supreme Court justices recently suggested in United States v. Jones that the proper scope of some privacy protection might be a topic better left to legislatures than courts.

In response to these concerns, this Article examines, comprehensively and in depth, the operation of privacy statutes with specific regard to law enforcement. In its most elemental form, this Article answers the following questions: what does the federal statutory approach to regulating privacy from the police look like, and in what ways does it mimic, overlap with, or differ from the Fourth Amendment constitutional approach? In answering these questions, this Article also engages the deeper democratic debate over constitutional versus statutory approaches to controlling the police, using the lessons garnered from examining existing privacy regulations to better inform the secondary argument about who does it best.

TABLE OF CONTENTS INTRODUCTION I. STATUTORY PRIVACY: METHODOLOGY AND OBSERVATIONS A. Methodology B. Things We Already Know: Federal Statutory Privacy Is Recent and Patchwork 1. Statutory Privacy Is a Late Twentieth-Century Invention 2. Statutory Privacy Protection Is Piecemeal, Sectoral, and Reactive C. Statutes Tend to Address Technology-Based Concerns D. Law Enforcement Interests Dominate E. Protection Focuses on Individuals, Not Entities, and Especially Members of the Economic Mainstream 1. Individuals, Not Entities 2. The Poor F. Law Enforcement Access Provisions Preference Subpoenas over Warrants, and Regulate Not Just Acquisition but Also Use G. Available Remedies in the Event of Violation Differ from the Constitutional Standard of Evidentiary Exclusion H. Accountability and Transparency Mechanisms May Be More Readily Available I. Federal Privacy Statutes Tend to Set Floors, Rather than Ceilings J. Relative Flexibility of Statutory Enactments II. LESSONS A. Myths Dispelled B. Rethinking the Processes of Privacy CONCLUSION APPENDIX INTRODUCTION

When we think of privacy protection in the criminal justice system, we think of the Fourth Amendment. (1) But lately its domain has become less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. (2) As might be expected, these statutes were largely enacted in the last third of the twentieth century, and they address matters vital to modern existence--including driver's licenses, education records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards--ranging from warrants and court orders to subpoenas and demand letters. Yet across this remarkable diversity, there is one feature that all these statutes share in common: each contains a provision exempting law enforcement from its general terms.

Surprisingly, these law enforcement exceptions, which appear in every generally applicable privacy statute on the federal books, have garnered virtually no scholarly attention. Perhaps this is because so many laws have sprouted up, each addressing atomistic areas of concern, that it is hard enough to consider them collectively, much less focus comprehensively on their relevance to policing. Indeed, federal statutory privacy law today is notoriously "sectoral," (3) an umbrella under which consumer, corporate, criminal justice, and myriad other interests mingle. Or perhaps the scholarly indifference reflects an assumption that law enforcement must be accorded some way around otherwise generally applicable protections. After all, the notion that the Fourth Amendment might occasionally wholly bar government access to information has seemingly been abandoned, having instead yielded to the Court's clear constitutional preference for procedural over substantive rules. (4)

But these statutes are important. It is no secret that the nature of criminal evidence is changing. Information is less and less likely to be found in physical forms (like a day planner or printed photographs found in the home) than in more abstract places where the strictures of the Constitution play a less defined role (like the bits and bytes of an iPhone, Flickr account, or Gmail calendar server). For this reason, the Fourth Amendment threshold "reasonable expectation of privacy" (5) test has been roundly criticized as insufficiently adapted to a world in which our experience of privacy comes packaged in unconventional ways (6)--whether through the settings of a Facebook feed. (7) the anonymity of an urban landscape, or even the mechanical sophistication of scientific diagnostic tools. (8)

Federal privacy statutes prove interesting for a second reason: they often cooperate with or supplant judicial decisions about the Fourth Amendment, and thus serve as natural subjects for studying institutional design questions. (9) That is, some criminal justice scholars commenced, in parallel to questions raised about the impact of technology on criminal procedure, a broader conversation about the allocation of power among the branches. The groundbreaking work of Bill Stuntz critiqued the constitutionalization of police practices in the Warren Court era as having generated unanticipated and counterproductive consequences, thereby fueling a cavalcade of arguments about the proper reach of courts, (10) By thinking of criminal justice as a system of interlocking institutions and players, Professor Stuntz also reignited separation of powers and federalism debates about the most legitimate, just, or efficient way to restrain government power. (11)

With respect to innovative investigative methods, Orin Kerr has persuasively argued that technological change is best regulated by legislative, not constitutional, pronouncements. (12) Focusing on the evolution of wiretapping law as a case study, Professor Kerr first observed that courts tend to meet new technological advances with a "relatively modest and deferential Fourth Amendment." (13) He then advanced a series of justifications for continued judicial caution, grounded largely in concerns about institutional competence: primarily that legislatures are better poised to gather facts from a wide range of interest groups about emerging technologies and are more adept at amending enactments to keep up with rapid changes, both with respect to a device's social meaning and its technical specifications. (14) More generally, critics of expansive constitutionalization of privacy rights have complained that it is, among other things, prone to being antidemocratic, antifederalist, piecemeal, incoherent, impracticably opaque, and inflexible (in that precedent is both easy to make and hard to dislodge). (15)

In contrast, advocates of judicial protection for constitutional interests both dispute the positive claims of legislative superiority and defend the role of the Constitution in safeguarding rights. They note that legislatures have not consistently risen to defend privacy, even in cases where the Constitution has not entered the field or has opened the door to legislative action, pointing to failures in political process. (16) The reason for legislative intransigence may vary, and "[j]ust by entering the fray, the Court can make it easier for legislators to stay out." (17) But as David Sklansky has observed, the reason for Congress's failure to act is, in the end, less important than the fact that it does not. Without the Court, important police activities--such as interrogations of suspects--would otherwise go wholly unregulated. (18)

This Article stands at the intersection of these two lines of inquiry--at the juncture between new technology and institutional design. This cross-roads has generally been overlooked: perhaps the privacy scholars have simply been too busy with consumer and data privacy to focus specifically on criminal justice, while the criminal justice scholars have been too busy with crime and the Fourth Amendment to focus on general privacy statutes. But the time for greater attention has clearly come.

In United States v. Jones, (19) the Supreme Court confronted its first major technological tool of police investigation in over a decade (20): a GPS tracking device installed on a private car. Although the plurality opinion--comically, in the minds of some (21)--resolved the issue on the basis of common law ideas of physical trespass, the two concurring opinions both suggested that technological change might require a more nuanced understanding of...