For eight weeks I built rules: what the government may collect, how it may analyze, how long it may keep, what it may use, how it must dispose. Every one of them shares a weakness I’ve been quietly deferring. A rule is only as real as what happens when it’s broken. If the government over-collects, re-searches, hoards, and the only consequence is a strongly worded opinion, then everything I’ve drafted is advice, not law. This week the model act grows teeth. The first and sharpest is suppression.
Suppression is the exclusionary rule: when the government gets evidence in violation of the Fourth Amendment, a court can bar the government from using it. It is the remedy that has done the most work in American search-and-seizure law, and the reason is pure incentive. Damages come out of a budget and a judgment years later; an inventory report is filed and forgotten. But suppression hits the government exactly where it lives — in the case it is trying to win, right now. Exclude the evidence and the prosecution can collapse. Nothing concentrates law-enforcement attention like the prospect of losing the case over how the evidence was gathered. That’s why suppression deters when softer remedies don’t.
Title III understood this and wrote suppression into the statute itself. Section 2515 bars the use of unlawfully intercepted communications as evidence in virtually any proceeding, and § 2518(10)(a) gives an aggrieved person a motion to suppress. Notice what that means: Title III doesn’t rely solely on the Constitution’s exclusionary rule. It creates a statutory suppression remedy tied to violations of the statute’s own procedures. Break the wiretap law’s rules, and the evidence is out — whether or not a court would independently find a constitutional violation. That is the model, and it matters enormously, because the constitutional exclusionary rule has been shrinking for forty years.
Here is the shrinkage, because § 9 is a response to it. In 1984, in United States v. Leon, the Supreme Court created the “good-faith exception”: if officers reasonably relied on a warrant later found defective, the evidence comes in anyway, because excluding it wouldn’t deter anyone — the officers did their best. Over the next decades the Court widened the opening. Herring extended good faith to police recordkeeping errors; Davis extended it to reliance on binding precedent later overturned. The through-line is that suppression now requires not just a violation but culpability — deliberate, reckless, or grossly negligent conduct. An honest mistake, however damaging to the citizen, increasingly costs the government nothing.
For digital searches, that shrinking remedy does something worse than let individual evidence in. It lets the hard questions go permanently undecided — and Thursday’s post is a case study in exactly that. When a court can resolve a digital-search challenge by saying “even if this violated the Fourth Amendment, the officers acted in good faith,” it never has to decide whether the practice was lawful. So the practice is never adjudicated. So it continues. So the next set of agents relies on it in good faith too — which is the very thing that will excuse it again. Good faith becomes a permanent bye, and the novel, aggressive, undecided digital-search technique gets grandfathered into normalcy, one unreached question at a time. The exclusionary rule, applied this way, doesn’t just fail to deter. It actively shelters the practices most in need of a ruling.
So § 9 does four things, and the first two restore what Title III already knew.
First, a statutory suppression remedy. Evidence obtained in violation of this Act — not just in violation of the Constitution — is subject to suppression. This is the § 2515 move. It attaches the remedy to the Act’s specific rules: the retention clock, the segregation duty, the use restriction, the second-warrant requirement. A court enforcing § 9 does not have to find an independent constitutional violation and then clear the good-faith hurdle; it asks whether the government followed the statute. That gives the upstream sections something the Constitution alone may not — a consequence precise enough to match the rule.
Second, a good-faith exception with real limits. I’m not abolishing good faith; an officer who makes an honest, isolated mistake relying on a facially valid warrant should not always cost the prosecution its case. But § 9 forecloses the two ways good faith goes pathological in the digital context. One: there is no good-faith reliance on the absence of a rule. Once this Act sets a retention clock and a use restriction, an agent cannot claim he reasonably believed he could keep and re-search forever, because the statute says otherwise in black letter. You cannot rely in good faith on a gap you are no longer standing in. Two: good faith is not a blanket earned once and held forever. Reliance must stay reasonable throughout the search; when the justification for a search dissipates, continued searching is no longer in good faith. (Thursday’s second case is precisely this point, decided this year.)
Third, suppression tied to the handling record. Remember § 6’s chain-of-custody-for-data. Section 9 makes it load-bearing: if the government cannot produce a record of what it searched, retained, and used, it cannot carry its burden to show the search stayed within the Act — and the evidence is suppressible on that basis alone. A search with no auditable trail is treated as a search the government cannot justify. This is what makes the handling record more than paperwork; it is the thing that lets suppression reach analysis-stage violations, which are otherwise invisible.
Fourth, calibrated remedies. Suppression need not be all-or-nothing. The Act should allow partial suppression — excluding only the fruits of the violation while admitting properly obtained evidence — and suppression of derivative evidence where the later discovery flows from the earlier violation. Calibration is what makes a muscular suppression rule defensible: the remedy is sized to the wrong, not detonated over the whole case for any infraction.
Now the objection, and it is the oldest one in criminal procedure. Suppression frees the guilty. It takes reliable evidence of real crime and throws it out to punish a government error, letting dangerous people walk over what can look like a technicality — and the good-faith exception exists precisely because excluding evidence over an honest mistake deters nothing and costs the public everything. Narrow good faith, the argument runs, and you free more criminals for less reason.
I feel the weight of that, and here is why § 9 still holds. The deterrence objection assumes the error is isolated and honest. The digital problem is the opposite: systemic practices — image everything, keep it forever, re-search at will — that no isolated-mistake framing fits, and that the current good-faith doctrine shelters precisely because courts keep declining to rule them unlawful. Suppression is the only remedy with enough force to change an institutional practice, because it is the only one the institution feels in the case it cares about. And the “technicality” framing gets the Fourth Amendment backwards: a general warrant is not a technicality: it is the specific evil the Amendment was written to prevent. When suppression falls on the government’s choice to write an unlimited warrant, or to keep searching after its justification evaporated, the deterrent is aimed exactly where it should be. The way to free fewer guilty people is not to weaken the remedy; it is to write rules clear enough that the government simply follows them, so there is nothing to suppress.That’s § 9. A rule with no remedy is advice, and for forty years the good-faith exception has been quietly turning the Fourth Amendment into advice for digital searches. The model act answers with a statutory suppression remedy the Constitution’s shrinkage can’t erode, a good-faith exception that can’t be a blanket or a bye, and a handling record that makes analysis-stage violations provable. Next Tuesday, § 10: civil damages — the remedy for the person whose data was abused in a case that never goes to trial at all. And Thursday, the good-faith exception caught in the act of doing its two opposite jobs — shielding the government in one famous case, and, this year, failing to.
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