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State v. Kraft
Brief of Amicus Curiae for the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers in Support of the Appellee.
Argument: The circuit court correctly concluded that the video recordings should have been suppressed because the State failed to follow minimization requirements. The Fourth Amendment prohibits the government from unreasonably intruding in citizens’ privacy. Here, the government recorded citizens over the course of several days in a day spa, where they had a reasonable expectation of privacy. The circuit court correctly found that the evidence should be suppressed here. Amici write to emphasize the unprecedented scope of the surveillance, as well as the importance of suppression here to protect the rights of both defendants and uncharged third parties. Traditionally, the remedy for an unconstitutional search would be suppression in a criminal trial. However, because some of the conduct surreptitiously recorded was perfectly legal, not everybody who was recorded has been charged with a crime. Furthermore, those third parties’ only recourse would be the possibility of a civil suit, which is costly. Indeed, suppression here is essentially the only way to deter the State from engaging in mass surveillance, knowing that many citizens would have little to no recourse. Any other result would encourage an “ends justify the means” approach that this Court has cautioned against.
First Unitarian Church of Los Angeles, et al. v. National Security Agency, et al.
Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers.
Argument: Wholesale collection of telephony records by the government deprives clients of their right to counsel by vitiating the confidentiality of attorney-client communications and attorney files. The strong protections afforded the confidentiality of legal work include the attorney-client privilege, work product doctrine and the duty of confidentiality. Bulk seizure violates confidentiality rules and impairs the right to a defense. The government’s current practices eviscerate FISA’s relevance and minimization requirements.