Fourth Amendment Commons^™

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 …

When School Is Not In Session: How Student Drug Testing Can Transform Parenting, Amanda R. Lamberson

Touro Law Review

This comment focuses on a growing trend in today's schools: requiring drug tests. A focus is given both to the judiciary's role in this matter and the Legislature's passage of New York Education Law section 912-a, 10 which regulates student drug testing and urine analysis.

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

The Fourth Amendment's National Security Exception: Its History And Limits, L. Rush Atkinson

Vanderbilt Law Review

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.' And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. Between 2004 and 2011, the Federal Bureau of Investigations ("FBI") issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations.

Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects …

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson

Stephen E Henderson

Stop Hammering Fourth Amendment Rights: Reshaping The Community Caretaking Exception With The Physical Intrusion Standard, Gregory T. Helding

Marquette Law Review

In 1973, the U.S. Supreme Court recognized the community caretaking exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures. As its name suggests, the exception acknowledges that police officers act not merely as law enforcers, but also as community caretakers, rendering aid to those in need, and acting to protect both people and property from harm. As originally conceived, the community caretaking exception was limited to situations involving automobiles where police were performing functions totally divorced from law enforcement. Over the years, courts have expanded the exception considerably. Police officers who suspect a crime has taken place may …

Sniff Dogs In Schools: Do The Noses Know?, Charles J. Russo

Educational Leadership Faculty Publications

As drugs and other contraband made their way into schools starting in the 1960s, education leaders turned to drug-sniffing dogs, which typically work in conjunction with law enforcement officials, to detect the presence of contraband in learning environments. In fact, sniff dogs—or their noses—are a highly effective, reliable, and unobtrusive means of discovering potentially dangerous contraband, such as drugs, alcohol, and even gunpowder from firearms. Accordingly, the vast majority of courts have upheld the use of sniff dogs in schools when challenged under the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The use of drug-sniffing dogs has come to …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

David C. Gray

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Danielle Keats Citron

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Reply Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

It’S Raining Katz And Jones: The Implications Of United States V. Jones–A Case Of Sound And Fury, Jace C. Gatewood

Pace Law Review

This Article discusses the implications of Jones in light of emerging technology capable of duplicating the monitoring undertaken in Jones with the same degree of intrusiveness attributable to GPS tracking devices, but without depending on any physical invasion of property. This Article also discusses how the pervasive use of this emerging technology may reshape reasonable expectations of privacy concerning an individual’s public movements, making it all the more difficult to apply the Fourth Amendment constitutional tests outlined in Jones. In this regard, this Article explores recent trends in electronic tracking, surveillance, and other investigative methods that have raised privacy concerns, …

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher Baldwin, Robert Shaw

Fletcher N. Baldwin

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

The Not-So-Simple Saga Of Edward And Barack..., Michael I. Niman Ph.D.

Michael I Niman Ph.D.

It reads like a political thriller. An NSA spook, Edward Snowden, meets his conscience, blows the whistle on a massive secret attack on the Fourth Amendment, and is pursued globally by an obsessed president. Spice things up with a bit of character development cross-pollinated with a history lesson. First there’s Darth President. His administration has earned the distinction of invoking the Espionage Act of 1917 (a constitutionally questionable World War One relic) more than all other presidents in the previous 96 years combined—by a factor of two. The Obama administration has charged eight people under the act. All previous administrations …

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock

Touro Law Review

No abstract provided.

Over Your Head, Under The Radar: An Examination Of Changing Legislation, Aging Case Law, And Possible Solutions To The Domestic Police Drone Puzzle , J. Tyler Black

Washington and Lee Law Review

No abstract provided.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Gary M. Shaw

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

“Lonesome Road”: Driving Without The Fourth Amendment, Lewis R. Katz

Seattle University Law Review

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment’s core value of preventing arbitrary police behavior has been marginalized. This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.

Safe To Drive? Police Powers Of Search And Seizure In The Vehicular Context, Mark Rucci

Honors College

Since their creation, automobiles have become a central facet of the American culture and psyche. As status symbols and modes of transportation their importance cannot be overstated. Americans love their cars, and the average citizen believes that he or she has legitimate privacy interests in his or her vehicle. But is this the case? For decades, The Court has struggled to balance 4th Amendment privacy rights with effective police procedure, and has thus handed down dozens of rulings on the topic, many of which often seem disparate and contradictory. In the face of such confusion, the Court’s answer has almost …