I had a fun time testifying this morning about the Patriot Act and the rules that govern Internet crime investigations. I was struck by the bipartisan sense among the Judiciary Committee members of the need for some kind of increased oversight of Internet surveillance practices. They weren’t sure exactly what kind of oversight to add, but they were interested in exploring the issue. I’ve been arguing in favor of a particular remedy to this problem for a few years now, and we spent a bit of time exploring the approach during the hearing. I thought my proposed remedy might be of interest to a broader blog audience.
First, a bit of background. Somewhat remarkably, Internet surveillance law does not include a suppression remedy for violations. The Fourth Amendment is traditionally enforced with a suppression remedy; if the police violate the Fourth Amendment, they can’t use the evidence illegally obtained. Not so in the case of the Patriot Act and the Internet privacy statutes. When Congress passed its first Internet privacy law in 1986, they struck a deal with the Justice Department: the Justice Department would go along with the legislation so long as there was no statutory suppresion remedy for violations. That compromise remains on the books today. As a result, Congress’s statute provides strong civil remedies but no right to suppression of evidence unlawfully obtained. (While the Fourth Amendment ruppression remedy exists in theory, for technical reasons it plays little to no role in practice.) If the government breaks the rules — wiretapping your Internet account unlawfully, getting your e-mail without a court order, etc. — you are not entitled to suppression of the evidence.
I wrote a law review article in 2003 explaining why this unusual remedies scheme has had terrible consequences for both civil liberties and law enforcement. The article is Lifting the ‘Fog’ of Internet Surveillance: How A Suppression Remedy Would Change Computer Crime Law (.pdf, 40 pages), published in the Hastings Law Journal. On the civil liberties side, the lack of a suppression remedy cuts off an important means of judicial oversight. The Fourth Amendment’s exclusionary rule triggers scrutiny of the goverment’s investigation whenever criminal charges are filed. The government has to explain and justify the steps it took, and that creates a record to help understand existing practices and to check for abuses. Absent a suppression remedy, however, the government’s practices remain mostly secret. Civil suits against the government can be filed in theory, but rarely are filed in practice; the reason in part is that the government faces no burden absent an exclusionary rule to explain the steps it took to solve the case in the first place, and without that explanation it’s hard to challenge the government’s conduct.
Less intuitively, the 1986 compromise hasn’t served law enforcement interests, either. While prosecutors don’t face suppression challenges, the absence of those challenges means that prosecutors don’t get a chance to explain to judges how the statutes work (and in some cases how they don’t work). With no challenges, there are almost no cases on the books explaining what the government can and can’t do. Even worse, the presence of strong civil remedies against both government and non-government actors has provided a boon to plaintiffs’ lawyers, who have brought lots and lots of silly civil suits against private parties for violating the Internet surveillance statutes. Judges have had a terribly hard time dealing with these suits; when forced to interpret these laws in the very unnatural setting of a civil suit between private parties, and with no other cases on the books, judges almost always misunderstand the statute and botch the holding in ways with serious but unforeseen consequences for law enforcement. The law of Internet surveillance has ended up unusually vague, and the few court decisions on the books are civil cases that only make matters more confusing.
I think the answer is to add a statutory suppression remedy for violations of the statutory Internet surveillance laws. I explain the details in the article linked to above. Will it happen? Maybe not this year. But some day, I think it will.
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