Law Commons^™

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Patricia L. Bellia

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.

The lessons of the Pentagon Papers case for WikiLeaks, however, are …

Designing Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

As communications surveillance techniques become increasingly important in government efforts to detect and thwart criminal and terrorist activities, questions of how to reconcile privacy and law enforcement interests take on paramount importance. These questions have institutional as well as substantive dimensions. That is, the issue is not simply what the limits on communications surveillance should be, but who should set them — courts through application of the Fourth Amendment or legislatures through statutes and the oversight process? The scholarly literature offers divergent positive and normative perspectives on these questions.

For most scholars, the question of who should regulate communications surveillance …

Cyberlaw: Problems Of Policy And Jurisprudence In The Information Age. 4th Edition., Patricia Bellia, Paul Schiff Berman, Brett Frischmann, David Post

Patricia L. Bellia

This law school casebook starts from the premise that cyberlaw is not simply a set of legal rules governing online interaction, but a lens through which to re-examine general problems of policy, jurisprudence, and culture. The book goes beyond simply plugging Internet-related cases into a series of doctrinal categories, instead emphasizing conceptual issues that extend across the spectrum of cyberspace legal dilemmas. While the book addresses all of the “traditional” subject matter areas of cyberlaw, it asks readers to consider both how traditional legal doctrines can be applied to cyberspace conduct, and how the special problems encountered in the course …

The Law Of Electronic Surveillance, Patricia Bellia, James Carr

Patricia L. Bellia

The Law of Electronic Surveillance provides objective analysis of issues related to the government's gathering of evidence through electronic devices. Providing more than 2,500 case citations, it covers major developments and important cases. Key topics include: Challenging court-ordered wiretaps; Electronic search warrants; Foreign intelligence surveillance; Suppression of evidence obtained; Voice exemplars and other identification evidence; Electronic surveillance of a defendant s attorney; Legal uses that may be made of evidence obtained from electronic surveillance; Confronting and challenging electronic surveillance; Executing an electronic search; Criminal penalties and civil remedies for illegal electronic surveillance; Electronic surveillance types and legal developments prior to …

Cyberlaw: Problems Of Policy And Jurisprudence In The Information Age. 2nd Edition., Patricia Bellia, David Post, Paul Schiff Berman

Patricia L. Bellia

This innovative casebookwhich has proved extremely popular with students and professors alikestarts from the premise that cyberlaw is not simply a set of legal rules governing online interaction, but a lens through which broader jurisprudential issues can be re-examined. Accordingly, this book goes beyond plugging Internet-related cases into a series of pre-existing doctrinal categoriesFirst Amendment, copyright, trademark, etc.and instead emphasizes the conceptual debates that cut across the areas of doctrine touched by cyberspace. Moreover, the casebook uses the rise of the Internet to encourage readers to reconsider various assumptions in traditional legal doctrine. This dual focus provides readers with broad-based …

Cyberlaw: Problems Of Policy And Jurisprudence In The Information Age. 1st Edition., Patricia Bellia, Paul Schiff Berman, David Post

Patricia L. Bellia

This law school casebook starts from the premise that cyberlaw is not simply a set of legal rules governing online interaction, but a lens through which broader issues can be re-examined. The book goes beyond simply plugging Internet-related cases into a series of pre-existing categories, instead emphasizing conceptual debates that cut across the areas of doctrine touched by cyberspace. It also uses the rise of the Internet to encourage readers to reconsider various assumptions in traditional legal doctrine, providing training in Internet-related legal issues while making the argument that cyberlaw is a coherent and useful field of study.

Cyberlaw: Problems Of Policy And Jurisprudence In The Information Age. 3rd Edition., Patricia Bellia, David Post, Paul Schiff Berman

Patricia L. Bellia

This innovative casebookwhich has proved extremely popular with students and professors alikestarts from the premise that cyberlaw is not simply a set of legal rules governing online interaction, but a lens through which broader jurisprudential issues can be re-examined. Accordingly, this book goes beyond plugging Internet-related cases into a series of pre-existing doctrinal categoriesFirst Amendment, copyright, trademark, etc.and instead emphasizes the conceptual debates that cut across the areas of doctrine touched by cyberspace. Moreover, the casebook uses the rise of the Internet to encourage readers to reconsider various assumptions in traditional legal doctrine. This dual focus provides readers with broad-based …

Bellia Brings Practical Experience To New Role, Notre Dame News, September 15, 2009, Patricia Bellia

Patricia L. Bellia

Bellia brings practical experience to new role, Notre Dame News, September 15, 2009

Patricia Bellia, the new chair of the University of Notre Dame’s Faculty Board on Athletics, has excelled at the highest levels of collegiate athletics and academics, giving her firsthand – and, for that matter, forehand – experience in her new position.

Pcaob And The Persistence Of The Removal Puzzle, Patricia L. Bellia

Patricia L. Bellia

In Free Enterprise Fund v. Public Company Accounting Oversight Board ("PCAOB"), the Supreme Court invalidated a statutory provision protecting the tenure of members of the PCAOB, a board created to oversee the auditing of public companies subject to the securities laws. The case carried the potential for a major shift in the Court's approach to separation of powers disputes. Although the Court delivered no such result, the PCAOB case provides a fascinating window on the removal puzzle. The case reflects an entanglement of multiple textually derived and nontextual separation of powers principles. One of the central principles on which the …

Executive Power In Youngstown's Shadows, Patricia L. Bellia

Patricia L. Bellia

Fifty years after it was handed down, the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court's separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown's shadows, and the possibility of a court exercising this power disciplines the executive …

Chasing Bits Across Borders, Patricia L. Bellia

Patricia L. Bellia

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework …

Surveillance Law Through Cyberlaw's Lens, Patricia L. Bellia

Patricia L. Bellia

The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans' concern about internet privacy. Although calls to limit the government's surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act's sunset date provides Congress with an opportunity to revisit that framework.

This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic …

Federalization In Information Privacy Law, Patricia L. Bellia

Patricia L. Bellia

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive …

Defending Cyberproperty, Patricia L. Bellia

Patricia L. Bellia

This Article explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from robots that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these cyberproperty …

The Memory Gap In Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because …

Spyware And The Limits Of Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

For policymakers, litigants, and commentators seeking to address the threats digital technology poses for privacy, electronic surveillance law remains a weapon of choice. The debate over how best to respond to the spyware problem provides only the most recent illustration of that fact. Although there is much controversy over how to define spyware, that label encompasses at least some software that monitors a computer user's electronic communications. Federal surveillance statutes thus present an intuitive fit for responding to the regulatory challenges of spyware, because those statutes bar the unauthorized acquisition of electronic communications and related data in some circumstances. Indeed, …

The "Lone Wolf" Amendment And The Future Of Foreign Intelligence Surveillance Law, Patricia E. Simone, Patricia L. Bellia

Patricia L. Bellia

In December 2004, Congress adopted an important change to the statutory framework authorizing domestic surveillance of foreign powers and their agents, the Foreign Intelligence Surveillance Act (FISA). The change, directly prompted by the events of September 11, 2001, makes it easier for the government to conduct surveillance of so-called lone wolf terrorists - that is, terrorists who act in sympathy with the aims of an international terrorist group but not on its behalf, or terrorists whose link to an international terrorist group cannot be demonstrated. Although the logic of the lone wolf amendment at first seems quite compelling, the amendment …

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Patricia L. Bellia

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald

Patricia L. Bellia

The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues …