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Constitutional Law

Selected Works

2018

Fourth Amendment

Articles 1 - 2 of 2

Full-Text Articles in Entire DC Network

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko Mar 2018

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]


Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals.  First ...