Addressing "Dawn Raid" Data Privacy Risks

The phrase “dawn raid” conjures images of Eliot Ness and his Untouchables brandishing guns and breaking down doors during the Prohibition era. These days we don’t think of dawn raids as something associated with white collar criminal investigations, let alone civil or regulatory investigations, but they can and do happen in these contexts around the world. The modern dawn raid, most notably associated with European enforcement actions, may be less dramatic, but only slightly, and can be just as terrifying to the people involved. ?

While the old-fashioned dawn raid seized physical evidence and carted it away, the modern dawn raid is more likely to involve the search and seizure of computer data, which has fundamentally different implications for privacy and data security. Computers are likely to store data wholly unrelated to the subject of the investigation and are equally likely to be connected to a network with even more unrelated data, including privileged data, confidential financial data, trade secrets, and the personal data of third parties covered by laws such as the General Data Protection Regulation (GDPR), which both law enforcement and the raided organization are obligated to protect.

Unlike more conventional investigative tools such as requests for information, civil investigative demand letters, subpoenas, or self-executing warrants, the dawn raid is conducted without prior notice, and the raided organization has no opportunity to consult with counsel and IT staff, negotiate the scope of the search, or segregate unrelated sensitive data, let alone raise legal challenges to the raid. From the raided organization’s viewpoint, once the data is gone, it’s gone, and the potential damage is irreversible. The investigation authorities, for their part, don’t want to be burdened by terabytes of data irrelevant to their investigation that they will be obligated to protect.

The Sedona Conference’s Working Group 6 has drafted a set of broad principles and best practices for managing the ?data privacy risks associated with dawn raids. These are designed to be applicable across jurisdictions and in both civil and criminal contexts, and apply to investigative agencies and potential target organizations alike. The 48-page draft, which includes a 7-page “Organization Checklist in Preparation for Dawn Raids”, is available free for download here and is open for public comment through March 6, 2025.

In brief, the Principles (explained in detail in the draft) are:

Principle 1. Dawn raids should be conducted based on a process that provides for meaningful pre- and/or post-raid review by an independent authority.

Principle 2. The dawn raid procedures that authorities follow should be in writing, readily available, and consistently applied, and should inform private parties of their rights and the processes available to them for protecting those rights.

Principle 3. Dawn raids should be conducted in a manner narrowly tailored and proportionate to the circumstances and purpose of the action, so that the data rights of impacted persons are preserved and respected.

Principle 4. Dawn raids should be conducted with due respect for the data privacy, protection, and localization laws of sovereigns whose citizens and residents are affected by the raids, as well as the rights and interests of persons who are subject to such laws.

Principle 5. There should be meaningful restrictions on the immediate access by authorities to privileged and protected information during a raid, and on the review, use, disclosure, and ultimate disposition of such information.

Principle 6. Organizations and third parties subject to a dawn raid should cooperate in the raid and should not obstruct or otherwise impede its conduct. On the other hand, the mere assertion of rights and attempt to exercise those rights should not be considered lack of cooperation or obstruction.

Principle 7. Organizations should assess the risk of dawn raid occurrence, including to the business, contracts, and protected information, and take reasonable steps to prepare for and mitigate such risks.

Principle 8. Organizations should assess their response to a raid and consider any mitigation and remediation steps appropriate to protect their data rights and those of third parties that are affected by the raid, and to improve future responses.

While discussion of this draft is not on the agenda of the upcoming Working Group 6 meeting at the offices of Covington & Burling in Los Angeles next month, the first session on Thursday, March 6, is on broader topic of “International Internal and Government Investigations” and I look forward to that discussion. Will I see y’all there?