Traditionally, the standard of evaluation an administrative law judge might use when determining the importance of an error was the question of intent. If the person committing the error had no intent to cause harm, the additional evidence provided to the law enforcement agency would likely remain inadmissible, but there would be no penalties to either the provider of the information or the law enforcement agency receiving it.
In fact, in not too ancient American history, the extra information would have been viewed as a bonus for the law enforcement agency and the discussion would have stopped there. However, in more recent cases, the court has placed a new set of restrictions and responsibilities on the law enforcement agency, possibly to the detriment of law enforcement. The best example of this new anti-law enforcement attitude is evidenced in Eric Lichtblau’s New York Times article “F. B. I.
Gained Unauthorized Access to E-Mail”. The article firmly places the blame for the mistake on the internet provider and yet expects the FBI to correct the mistake. “Marcia Hofmann, a lawyer for the privacy foundation, said the episode raised troubling questions about the technical and policy controls that the F. B. I. had in place to guard against civil liberties abuses. “How do we know what the F. B. I. does with all these documents when a problem like this comes up? ” Ms. Hofmann asked.
” (Lichtblau, 2008). The author likens the mistake to the FBI receiving a warrant to search one apartment and the landlord mistakenly giving them the keys to the whole building, but the problem with that analysis is that in this case, the FBI did not immediately know it had been given a master set of keys. Perhaps more appropriately would be to say that the FBI had permission to search a single book in the library and the librarian provided them with every book in the library.
Somehow, privacy activists are claiming that the FBI must have a policy in place to prevent the mistake in the first place and clean it up when it does happen. Hofmann specifically questions how the FBI was disposing of the documents and there is a legitimate question there; however, the article misses the point and creates an administrative law nightmare for the bureau and subsequently for all law enforcement agencies. By implying that the FBI is somehow responsible for the manner in which other comply with search warrants, the newspaper article is promoting a significant shift in the administration of the law.
Instead of simply asking law enforcement to be able to investigate crime and enforce that aspect of the law, we are asking them to act as administrators of the law as well. Though the title law enforcement does imply that they should be responsible for the administration of court orders including warrants, this new approach seems to blur the line between the court and the investigating agency, making it that much more difficult for the investigators to do their jobs.
In the American tradition, with common law as its backing, law enforcement traditionally has served to enforce the compliance with administrative orders (like search warrants) only when the person responding to the warrant has refused to comply with the court’s orders. Now, with issues like the one discussed in this article, it appears that the focus may be changing and law enforcement may be charged with determining how well the respondent complies with the warrant as well.
Though this initially will mean more work for the agency, as in this example, the FBI would need to ascertain that it received only the information in the search warrant, this could spell problems for civil rights down the road. If the law enforcement agency is now defining the degree of compliance with a search warrant, it is completely plausible that a future agency could demand more information than the warrant initially authorized and with the right judge, could justify whatever actions they took to get the information.
The erosion of individual rights begins when we move away from judicial review of search warrant compliance and place it in the hands of law enforcement. Works Cited Lichtblau, Eric. “F. B. I. Gained Unauthorized Access to E-Mail”, New York Times, February 18, 2008. Available at: http://www. nytimes. com/2008/02/17/washington/17fisa. html? ex=1203829200&en=58b05e0425027b1b&ei=5123&partner=BREITBART, Accessed march 5, 2008.
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