The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions

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 enforcementfrom 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.