ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records

Abstract

I served as Reporter drafting these Standards over the past six years; the black letter was adopted by the American Bar Association (ABA) House of Delegates in February, 2012. These Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access to medical records, location records, communications records, and myriad other information, and these Standards provide a framework via which they can bring greater consistency to existing law, and, where necessary, frame new law that accounts for changing technologies and social norms, the needs of law enforcement, and the interests of privacy, freedom of expression, and social participation.

Keywords: search, privacy, information privacy, Fourth Amendment, third party doctrine

JEL Classification: K14