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- Title
"YOU'VE TAKEN ALL YOU CAN BEAR": REPLACING THE RICKETY FRAMEWORK FOR LAW ENFORCEMENT ACCESS TO PRIVATE COMMUNICATIONS.
- Authors
CONNOLLY, JOHN S.
- Abstract
One of the most surprising episodes of the first hundred days of the Trump Presidency was President Trump's tweet stating "that Obama had [his] 'wires tapped' in Trump Tower just before the victory." Of the many questions this accusation raised, one of the most pointed was whether then-candidate Trump or his organization were under criminal investigation such that a criminal wiretap could have been authorized. This question was natural because federal law sets a high bar for government officials seeking real-time access to a person's phone calls or emails. But if President Trump had instead accused President Obama of accessing all his emails from the previous few years, the accusation would have been more plausible legally (if not factually) because law enforcement can theoretically obtain emails older than 180 days by issuing a simple subpoena. Does this difference make any sense? This Note examines the current framework for law enforcement access to private communications and proposes concrete ideas to make that framework coherent. Specifically, it advocates adopting a new system for deciding what authorization law enforcement must receive to access different types of communications. This system would be based on the scope of the access and the sensitivity of the material sought.
- Subjects
UNITED States; ELECTRONIC surveillance; ELECTRONIC Communications Privacy Act of 1986 (U.S.); OLMSTEAD v. United States (Supreme Court case); LAW enforcement; FACEBOOK (Web resource); ELECTRONIC surveillance laws
- Publication
Harvard Journal on Legislation, 2018, Vol 55, Issue 1, p209
- ISSN
0017-808X
- Publication type
Article