Federal laws protecting individual privacy rights in electronic communications have not been meaningfully updated in over 25 years, even though many of today’s technologies were not even conceived of when Congress considered the legislation and when the Supreme Court created the “Third Party Doctrine.” This white paper discusses the current status of the law and concludes with recommendations for reform. [Released February 2012]

Over the past several years, the government has increasingly turned to hacking and malware as an investigative technique. The Federal Bureau of Investigation has begun deploying software designed to infiltrate and control, disable, or surveil a computer's use and activity. The ACLU created a guide, to which NACDL and EFF contributed, that sets out key legal arguments and strategies for challenging evidence seized by government-installed computer malware. [Released March 2017]

Why the Federal Bureau of Prisons Must Stop Monitoring Confidential Legal Emails

This report by NACDL and the Samuelson Clinic makes the case for Congress to act immediately to protect the attorney-client privilege in emails sent between attorneys' offices and people in BOP custody. It also calls for the BOP to stop its practice of requiring incarcerated clients to “voluntarily” agree that their email will be monitored and that attorney-client privilege will not apply to legal emails, just as the government is required to in other contexts. [Released December 2020]

In response to a series of high-profile police killings of unarmed people of color, law enforcement agencies across the country began adopting body cameras as a solution to requests for more transparency and accountability. In order to study the impact of body cameras on the rights of the accused, the National Association of Criminal Defense Lawyers established a Body Camera Task Force comprised of defense attorneys from across the country. [Released March 2017]

NACDL seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual through litigation and public advocacy. The Fourth Amendment is the appropriate starting point for assessing the limits on government intrusion into one's privacy, and its protections must continue to thrive in the digital age.

NACDL strives to guarantee that evidence obtained in violation of the Fourth Amendment is excluded in a court of law, and we know that you want to do the same for your clients.

This page contains materials and information related to the Fourth Amendment, including some surveillance and digital forensics resources.

A Fourth Amendment Issue Sampler, featuring NACDL's Jumana Musa, Director of the Fourth Amendment Center.

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

NACDL's Fourth Amendment Center offers direct assistance to defense lawyers handling cases involving new surveillance tools, technologies and tactics that infringe on the constitutional rights of people in America. The Center is available to help members of the defense bar in bringing new Fourth Amendment challenges, providing a range of support: from training and resources to expert consultation and direct litigation, all free of charge.

The Tech Advisory Board is made up of defense attorneys, academics, and technologists who help ensure that Fourth Amendment case law evolves to keep pace with emerging technologies.

Predictive policing encompasses the surveillance technologies, tools, and methods employed to visualize crime, target “at-risk” individuals and groups, map physical locations, track digital communications, and collect data on individuals and communities.

Brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union as Amici Curiae in Support of Petitioners. 

Argument: This case asks whether a reasonable jury could find that police officers use excessive force when they kill a shackled and handcuffed arrestee inside of a jail cell by compression asphyxiation. The Eighth Circuit’s decision departs from an otherwise uniform national rule established by all other courts of appeals that have addressed the issue that the Fourth and Fourteenth Amendments categorically prohibit the asphyxiation of a restrained arrestee or pre-trial detainee who poses no threat to officers or others. The national rule applied outside of the Eighth Circuit is the only rule that conforms to the Supreme Court’s cases governing the use of deadly force, is deeply rooted in the Fourth Amendment and prevailing common-law rules, and is consistent with statutes and law enforcement policies already in effect across American jurisdictions. Categorically prohibiting the use of deadly force, such as compression asphyxia, on restrained citizens is essential to the fair administration of criminal justice. 

The National Association of Criminal Defense Lawyers provides amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole. A selection of NACDL's amicus briefs that address the Fourth Amendment are offered below.