that §1519 only applies to actions undertaken after a judicial proceeding has actually
commenced.
200
Section § 1512(b) of the Act seeks to punish those who command or induce
others to destroy documents relevant to a proceeding.
201 To prove an offense under
this section:
[t]he government must prove that the defendant (1) knew or had notice of the likelihood of
an “official proceeding”; (2) knowingly engaged in intimidation, threats, corrupt persuasion,
or misleading conduct; (3) with the intent to cause or induce any person to alter or destroy
documents relevant to the proceeding.
202
Where the government holds digital evidence that exculpates the defendant, the
government has an affirmative duty to disclose that information to the defense.
203
Defendants in some cases have unsuccessfully petitioned the court for a jury
instruction, alleging that the government failed to preserve potential electronic
evidence attempt to reverse a conviction or obtain a new trial.
204
5 Data Protection and Electronic Surveillance for Security
and Defense Purposes
Although the Fourth Amendment to the U.S. Constitution regulates the actions of
law enforcement in criminal investigations, the Amendment’s impact on foreign
intelligence gathering is mediated by legislative instruments such as the Foreign
Intelligence Surveillance Act (FISA).
205 FISA provisions govern when an investigation’s significant purpose is to conduct foreign intelligence gathering.
206 The Act
aims to empower law enforcement to monitor national security threats while
maintaining the secrecy of those investigations.
207 While American courts have
developed an extensive Fourth Amendment jurisprudence that seeks to balance
privacy interests with law enforcement’s interest in investigating crime, when
national security interests are at stake, Congress has sought to balance those interests
through FISA and subsequent legislation. Given the subsequent expansion of FISA’s
200 515 U.S. 593, 598–599 (1995).
201 Stanger (2005).
202 Id.
203 See, e.g., U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000).
204 See, e.g., U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000).
205 50 U.S.C. §§ 1801–11, 1821–29, 1841–46, 1861–62, 1871.
206 50 U.S.C. § 1804(a)(6)(B) &§1823 (a)(6)(B).
207 “Privacy & Civil Liberties: The Foreign Intelligence Surveillance Act of 1978”, U.S. Department
of Justice, Office of Justice Programs, Bureau of Justice Information Sharing. Available online at:
https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286.
Data Protection in the United States: U.S. National Report
437
commenced.
200
Section § 1512(b) of the Act seeks to punish those who command or induce
others to destroy documents relevant to a proceeding.
201 To prove an offense under
this section:
[t]he government must prove that the defendant (1) knew or had notice of the likelihood of
an “official proceeding”; (2) knowingly engaged in intimidation, threats, corrupt persuasion,
or misleading conduct; (3) with the intent to cause or induce any person to alter or destroy
documents relevant to the proceeding.
202
Where the government holds digital evidence that exculpates the defendant, the
government has an affirmative duty to disclose that information to the defense.
203
Defendants in some cases have unsuccessfully petitioned the court for a jury
instruction, alleging that the government failed to preserve potential electronic
evidence attempt to reverse a conviction or obtain a new trial.
204
5 Data Protection and Electronic Surveillance for Security
and Defense Purposes
Although the Fourth Amendment to the U.S. Constitution regulates the actions of
law enforcement in criminal investigations, the Amendment’s impact on foreign
intelligence gathering is mediated by legislative instruments such as the Foreign
Intelligence Surveillance Act (FISA).
205 FISA provisions govern when an investigation’s significant purpose is to conduct foreign intelligence gathering.
206 The Act
aims to empower law enforcement to monitor national security threats while
maintaining the secrecy of those investigations.
207 While American courts have
developed an extensive Fourth Amendment jurisprudence that seeks to balance
privacy interests with law enforcement’s interest in investigating crime, when
national security interests are at stake, Congress has sought to balance those interests
through FISA and subsequent legislation. Given the subsequent expansion of FISA’s
200 515 U.S. 593, 598–599 (1995).
201 Stanger (2005).
202 Id.
203 See, e.g., U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000).
204 See, e.g., U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000).
205 50 U.S.C. §§ 1801–11, 1821–29, 1841–46, 1861–62, 1871.
206 50 U.S.C. § 1804(a)(6)(B) &§1823 (a)(6)(B).
207 “Privacy & Civil Liberties: The Foreign Intelligence Surveillance Act of 1978”, U.S. Department
of Justice, Office of Justice Programs, Bureau of Justice Information Sharing. Available online at:
https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286.
Data Protection in the United States: U.S. National Report
437