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Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Stephen E Henderson

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Stephen E Henderson

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Stephen E Henderson

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Stephen E Henderson

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Stephen E Henderson

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Stephen E Henderson

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …