Stephen Henderson, Government Access to Private Records

Stephen Henderson, Government Access to Private Records

Comment by: Chris Slobogin

PLSC 2009

Workshop draft abstract:

Although there is room for debate regarding whether the rule is truly monolithic, so far as the provider of information is concerned, there is little to no Fourth Amendment protection for information provided to a third party.  But of course there remain significant legal protections for certain types of third-party information.  A good number of states have constitutionally rejected the federal doctrine, and are working out a more protective constitutional jurisprudence.  And all fifty states and the federal government provide statutory restrictions on government access to certain information in the hands of third parties.  So, the question is not whether the law should provide such restriction, but instead when and how it should do so.  These Standards seek to bring needed uniformity and clarity to the law by providing aspirational “best practices” standards regulating government access to private information in the hands of institutional third parties.  Although very significant decisions are still being made, this includes creating a “privacy hierarchy” of third party information, including articulating how to populate that hierarchy, and then assigning restraints to the various types of information.  While “more private” information is obviously generally deserving of greater restriction upon access, there are difficult decisions to be made regarding how best to enable effective investigations: if there is no way to differentiate different stages of law enforcement activity in an administrable manner, then only relatively light restrictions will be possible.  Moreover, given that law enforcement is increasingly creating databases of information it obtains, it is necessary to craft restrictions on the dissemination and use of third party information previously gathered.  The Standards will address these, and possibly other, concerns.