Law Commons^™

Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand

Dickinson Law Review (2017-Present)

When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, Charles E. Volkwein

Privacy Certificate Student Publications

Today’s availability of massive data sets, inexpensive data storage, and sophisticated analytical software has transformed the capabilities of law enforcement and created new forms of “Big Data Policing.” While Big Data Policing may improve the administration of public safety, these methods endanger constitutional protections against warrantless searches and seizures. This Article explores the Fourth Amendment consequences of Big Data Policing in three parts. First, it provides an overview of Fourth Amendment jurisprudence and its evolution in light of new policing technologies. Next, the Article reviews the concept of “Big Data” and examines three forms of Big Data Policing: Predictive Policing …

High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, Molly E. O'Connell

Washington and Lee Law Review Online

The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without …

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey

Washington and Lee Journal of Civil Rights and Social Justice

In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …

Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon

Marquette Law Review

The metaverse is understood to be an immersive virtual world serving as the locus for all forms of work, education, and entertainment experiences. Depicted in books, movies, and games, the metaverse has the potential not just to supplement real-world experiences but to substantially supplant them. This Article explores the rapid emergence and evolution of the Web3 technologies at the heart of the metaverse movement. Web3 itself is a paradigmatic shift in internet commerce.

Criminal Procedure—Technology In The Modern Era: The Implications Of Carpenter V. United States And The Limits Of The Third-Party Doctrine As To Cell Phone Data Gathered Through Real-Time Tracking, Stingrays, And Cell Tower Dumps, Deepali Lal

University of Arkansas at Little Rock Law Review

No abstract provided.

Catchall Policing And The Fourth Amendment, Nirej Sekhon

Duke Law Journal Online

American police do a bit of everything. They direct traffic, resolve private disputes, help the sick and injured, and do animal control. Far less frequently than one might think, they make arrests. Americans reflexively call the police for troubles, big and small. The “catchall tradition” is shorthand for this melding of non-adversarial, public assistance with adversarial, crime-control functions. The catchall tradition means that civilians are exposed to the police’s coercive power as a condition of receiving police help. This Article contends that the catchall tradition is antithetical to constitutional police regulation. The Supreme Court has distinguished adversarial from non-adversarial state …

Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, Joe Hillman

University of Michigan Journal of Law Reform

As autonomous vehicles become more commonplace and roads become safer, this new technology provides an opportunity for courts to reconsider the constitutional rationale of modern search and seizure law. The Supreme Court should allow drivers to use evidence of police officer conduct relative to their vehicle’s technological capabilities to argue that a traffic stop was pretextual, meaning they were stopped for reasons other than their supposed violation. Additionally, the Court should expand the exclusionary rule to forbid the use of evidence extracted after a pretextual stop. The Court should retain some exceptions to the expanded exclusionary rule, such as when …

“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee

University of Michigan Journal of Law Reform

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen J. Pita Loor

Michigan Law Review

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

Dna Dystopia: How The National Security Apparatus Could Map The Entire Genome Of America Without Violating The Fourth Amendment Or The Constitutional Right To Privacy, Elias Rios Iii

Brooklyn Law Review

Over the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to neutralize …

Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston

West Virginia Law Review

No abstract provided.

Warrant Nullification, L. Joe Dunman

West Virginia Law Review

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people's homes. Many search warrants are executed by militarized "dynamic entry" teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide-not just suspects but also officers and bystanders. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This Article explores one such option: nullification. …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a …

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely …

Administrative Investigations, Aram A. Gavoor, Steven A. Platt

Indiana Law Journal

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts have held …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Notre Dame Law Review

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …

The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict

Washington and Lee Law Review

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing …

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference - American Revival: Citizenship & Virtue

No abstract provided.

Wrongfully Charged, Golden Gate University School Of Law

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

On January 10, 2020, a San Francisco Superior Court judge, at the request of a San Francisco Police officer, issued an arrest warrant in connection with a residential burglary. Mot. Suppress Evid. Off’d Against Def. Prelim. Hr’g, 6:1-2. The warrant listed suspects to be arrested and described a residence in Oakland that was to be searched. Id. at 3:5-13. The San Francisco Police Department sent a special operations unit to execute the warrant. Id. at 10:13-22. When the officers arrived at the house, they found the suspect as well as other individuals in the house.

One of those individuals was …

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …

Imposing A Daily Burden On Thousands Of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists' Fourth Amendment Rights In Kansas V. Glover, George M. Dery

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, …

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …