Criminal Proceedings -- Probable Cause the Law

Criminal Proceedings -- Probable Cause

The Law information site provided by Cornell University defines probable cause as the requirement that is found in the Fourth Amendment to the Constitution that "…must usually be met before police make an arrest" or conduct a search or get a warrant from a judge (www.law.cornell.edu). Most courts find probably cause a justifiable reason to issue a warrant when there is "…a reasonable basis for believing that a crime may have been committed" (www.law.cornell.edu). Moreover, when shown evidence that there is probable cause to believe an arrest should be made -- or a search warrant should be issued -- a judge will in most cases accept the "probably cause" component that is used by law enforcement to fight crime and terrorism.

Probable Cause

The Director of the FBI, Robert Mueller, testified in front of the Senate Judiciary Committee of the U.S. Senate in March, 2011, that if the U.S. Government had to show "probable cause" in order to intercept the digital communications of American citizens that would "severely inhibit" future investigations (Strohm, 2011). Writing in the National Journal Daily, Strohm explains that organizations like the American Civil Liberties Union (ACLU) and other privacy groups linked to the Internet are at odds with the government's policy of snooping on emails -- and asking companies like Verizon and AT&T to turn over phone records and other digital transmissions.

Several groups want to ensure that there is a good reason before the FBI and other government agencies solicit phone records from specific individuals through the phone companies. In other words, there should be "probable cause" that an individual has broken a law or is cooperating with terrorist organizations before the government seizes his or her phone records.

"Specifically," Strohm writes, the coalition (including Microsoft, Google, eBay, and the Electronic Frontier Foundation, among others) that is protesting the government's policies wants the government to "…show there is probable cause that a crime is being committed" prior to taking action by surreptitiously seizing phone records (Strohm, p. 1). The way the government does this is by "compelling companies to turn over electronic records," but the group opposed to this behavior insists that the federal officials need to be certain that wrongdoing has occurred before arbitrarily demanding that communication companies to turn over private phone records.

The FBI's position is that in order to prevent "terrorist attacks" it needs access to phone records; it would be "tremendously problematic in our capability of undertaking and successfully undertaking investigations," he told the committee (Strohm, p. 1). But the coalition opposed to having personal phone records turned over to the FBI and other authorities assert that the law -- the 1986 Electronic Communications Privacy Act -- is nothing but "…a patchwork of confusing standards and that requiring probably cause" prior to the collection of phone records would be basically equal to "…the protections provided for the privacy of phone calls and physical files" (Strohm, p. 1).

Also, the 1994 Communications Assistance for Law Enforcement Act comes into play, because many organizations say it needs to be reformed to better reflect Constitutional guarantees of citizen privacy against government intrusion.

But Mueller claims his organization and other agencies involved with fighting crime and terrorism are facing "…a growing gap in our ability to execute court-approved intercepts of certain modern communications technologies" (Strohm, p. 2).

In The Journal of Criminal Law & Criminology the author points to the fact that the American Bar Association has tried to intervene in this privacy and probably cause matter by drafting what is called "Standards on Law Enforcement Access to Third Party Records" (Taslitz, 2013, 840). These standards that the bar association tried to get enforced (through negotiation with judges, law enforcement, and other government officials) would provide "numerous protections and procedures," including a "sliding scale of levels of justification -- probably cause, reasonable suspicion, and mere relevance" -- and also, there would be "variations in who must make the determination" as to probably cause (Taslitz, 841).

However, the law enforcement representatives who worked with the American Bar Association did not like the fact that the government agencies would have to justify the intrusion into private phone records. Indeed, law enforcement members were "…vehemently opposed to any justification requirement whatsoever," and law enforcement successfully watered down the draft resolution before it went to the ABA House of Delegates (Taslitz, 842).