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The Third Branch

Judges, legislators and staff discuss new technology at Inter-branch symposium

On Oct. 8, the Supreme Court Office of Judicial Education co-hosted a joint judicial-legislative symposium entitled, The Fourth Amendment and Emerging Communications and Tracking Technology. Organized by Chief Justice Shirley S. Abrahamson and the Wisconsin Legislative Council, it was the fifth joint-branch education session to be held since 2001. The symposium provided a unique opportunity for approximately 130 judges, legislators and staff members to create and reinforce communication between the two branches of government.

Programming focused on Fourth Amendment issues and the tensions between privacy protections and the state’s interest in possessing sufficient tools for law enforcement.

Professor Stephen Henderson, University of Oklahoma College of Law, discussed the theory of information privacy and how the Fourth Amendment, including the so-called third-party doctrine. Henderson assisted in developing the newly enacted American Bar Association Criminal Justice Standards, which provide a framework for balancing these tensions and how it applies to location information.

Many states have diverged from this doctrine as a matter of state constitutional law - providing greater privacy protections - and all states have diverged as a matter of statutory law. 

Outagamie County Circuit Court Judge Mark J. McGinnis discussed Fourth Amendment issues specific to Wisconsin, including topics of searches, seizures, expectation of privacy, issuance and execution of search warrants, and the exceptions to the search warrant requirement. He provided an overview of relevant case law and statutory law and an analysis of the current conflicts between law enforcement investigations and intelligence and the privacy rights and liberties of individuals. He also described legislative proposals developed in other states.

A representative of the UW-Madison College of Engineering discussed the current and anticipated capabilities of cutting-edge communications technology. A panel featuring McGinnis, two law school professors, a private-practice attorney and a state assistant attorney general discussed the dual objectives of protecting personal privacy and ensuring necessary governmental access to certain information. They also discussed the applicability of current law to emerging communications technology and legislative approaches that may help achieve a balance between competing policy goals.

In addition to the Office of Judicial Education, the symposium was co-sponsored by the Wisconsin Joint Legislative Council and the Council of State Governments – Midwest. The first such symposium was held Sept. 11, 2001.

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