66 Oklahoma Law Review 875 (2014)
“This article measures the new ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records (LEATPR Standards) success by assessing the guidance they provide legislators interested in updating pertinent law regarding one specific type of data. Scholars should not expect the Standards to yield the same conclusions they would have furnished had they been able to draft a set of standards by themselves. The Standards emerged after years of painstaking consensus building and compromise no individual committee member got entirely what he wanted. Nonetheless, not every product of a committee turns out to have been worth the effort, which is why this article assesses the Standards’ value.
The article concludes that the Standards provide important insights to legislators who want to fill the gap that is the current law on law enforcement access to location records. They encourage law makers to extend their gaze well beyond the extremely limited consideration of whether location records would reveal information about the inside of the home to take account of a much wider range of significant questions about the nature of location records. They correct several flaws in the Fifth Circuit’s approach to assumption of risk, including the notion that mere use of a provider coupled with likely constructive knowledge of the possibility of law enforcement access to records are sufficient to deprive a user of privacy protection in even a limited amount of location data. Finally, they remind Congress that, while it matters what showing law enforcement agents must make to a judge before obtaining an order for location records, other procedural protections, such as notice, meaningfully contribute to transparency and accountability and help rein in abusive practices.”
The full text is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2459245