Electronic Crime Partnership Initiative
Full Faith and Credit sample
legislation
    NATIONAL INSTITUTE OF JUSTICE

    ELECTRONIC CRIME PARTNERSHIP INITIATIVE

    WORKING GROUP ON LAW & POLICY

    Project:  Full Faith and Credit for State Search Warrants
    Subpoenas and Other Court Orders

    August 26, 2002


    Contact:

    Susan W. Brenner
    NCR Distinguished Professor of Law & Technology
    University of Dayton School of Law
    300 College Park
    Dayton, Ohio 45469-2772
    Phone:   937.229.2929
    Fax:        937.229.2469
    http://www.cybercrimes.net
    http://www.udayton.edu/~grandjur



    DRAFT STATUTE

    August 26, 2002
    National Institute of Justice, ECPI Working Group on Law & Policy


18 U.S. Code §  ______

(a)   Full Faith and Credit - Any production order issued that is consistent with subsection (b) of this   
   section by the court of another State (the issuing State) shall be accorded full faith and credit by
   the court of another State (the enforcing State) and enforced as if it were the order of the       enforcing
   state.                                                                                                        

(b)   Production Order - A production order issued by a State court is consistent with this subsection if  

  (1) The order is pursuant to the investigation or prosecution of a crime of the issuing state;
  (2) The order was issued in accordance with the law of the issuing state; and                     
  (3) Such court had jurisdiction over the criminal investigation or prosecution under the law
       of the issuing state.                                                                                                    

(c)  "Production Order" means any order, warrant, or subpoena for the production records,        
    issued by a court of competent jurisdiction.                                                             
(d)  "Records" includes those items in whatever form created or stored.                                       



Full Faith and Credit for State Search Warrants, Subpoenas and Orders:

The Need for a Federal Statute to Allow Reciprocal Enforcement



The problem:

    One of the most difficult problems in state cybercrime investigations is obtaining evidence.  Because
    computer evidence is easily destroyed, advertently or inadvertently, law enforcement officers need to be
    able to obtain evidence quickly across state lines.  As a 2001 report explained, there is currently no
    formal legal mechanism to allow for the enforcement of State subpoenas in other States. Cooperation
    can be achieved when one State attorney general’s office voluntarily assists a sister State authority in
    either serving an out-of-State subpoena or seeking an in-State court order to enforce the out-of-State
    subpoena. However, the reliability and consistency of this procedure is not uniform, and the ability to
    secure enforcement of an out-of-State subpoena on a recalcitrant party is questionable at best.   Even
    when enforcement is obtained, it can be a time-consuming process, which means the evidence may well
    have been destroyed by the time the out-of-state order is ready to be executed.  Because of this law
    enforcement personnel have for some time been seeking federal action—either in the form of an
    interstate compact or a federal full faith and credit statute—that would permit the reciprocal enforcement
    of state search warrants, subpoenas and court orders.

  The proposed statute:
    The proposed statute requires states to give full faith and credit to out-of-state search warrants,
    subpoenas and other production orders as long as they were issued in accordance with due process
    and with the procedural requirements of the issuing state’s law.  The National Institute of Justice –
    Electronic Crime Partnership Initiative’s Working Group on Law & Policy rejected the notion of
    employing an interstate compact to accomplish this because states would have to elect to abide by a
    compact; this would means that some states would be bound and others would not.  Since the goal is to
    ensure uniform, consistent eciprocity, the Working Group felt federal legislation was the best choice.





National Institute of Justice, Electronic Crime Needs Assessment for State and Local Law Enforcement       
(March 2001, NCJ 186276).

See, e.g., Janet Reno, Attorney General’s Cyber Crime Plan, National District Attorney’s Association – The
Prosecutor (July/August 2000).  

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