Law Commons^™

The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald

Susan Freiwald

The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …