Law Commons^™

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

No abstract provided.

Putting Cano On Ice – A Path Forward For Border Searches Of Electronic Devices, Davis Price Shugrue

Vanderbilt Journal of Entertainment & Technology Law

Across the country, circuit courts disagree over what level of suspicion, if any, is required for border officials to search electronic devices. This leaves law enforcement agencies in the lurch because they must craft nationwide policies that cover jurisdictions with differing rules. The Supreme Court should bring this quandary to an end by holding that no reasonable suspicion or warrant is required for border searches of electronic devices. Many scholars and litigants have called for a reasonable suspicion or warrant requirement in light of Supreme Court decisions like Riley and Carpenter that recognize the privacy concerns raised by searches of …

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

A New Era: Digital Curtilage And Alexa-Enabled Smart Home Devices, Johanna Sanchez

Touro Law Review

No abstract provided.

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

The Left's Law-And-Order Agenda, Aya Gruber

Publications

No abstract provided.

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

Borders And Bits, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

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

Stephen E Henderson

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Check Yes For Checkpoints: Suspicionless Stops And Ramifications For Missouri Motorists, Conner Harris

Missouri Law Review

One of the great advantages of living in a free society is the enjoyment of general privacy and freedom from unwarranted interference in one’s personal affairs. This advantage benefits citizens in both their private and public interactions. For example, it is expected one could drive to the store across town, the mall in a neighboring city, or somewhere on the other side of the country uninterrupted and unhindered. The Fourth Amendment to the United States Constitution codifies this privacy expectation as a right to be enjoyed by all within its reach. Specifically, the Fourth Amendment protects against “unreasonable searches and …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele E. Gilman, Karen Levy, Alice Marwick

All Faculty Scholarship

This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions …

Recording A New Frontier In Evidence-Gathering: Police Body-Worn Cameras And Privacy Doctrines In Washington State, Katie Farden

Seattle University Law Review

This Note contributes to a growing body of work that weighs the gains that communities stand to make from police body-worn cameras against the tangle of concerns about how cameras may infringe on individual liberties and tread on existing privacy laws. While police departments have quickly implemented cameras over the past few years, laws governing the use of the footage body-worn cameras capture still trail behind. Notably, admissibility rules for footage from an officer’s camera, and evidence obtained with the help of that footage, remain on the horizon. This Note focuses exclusively on Washington State’s laws. It takes a clinical …

Newsroom: Goldstein On Drug Databases 6-27-2016, Sheri Qualters, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

Riley V. California And The Beginning Of The End For The Third-Party Search Doctrine, David A. Harris

Articles

In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination of …

Fourth Amendment Implications Of Police-Worn Body Cameras, Erik Nielsen

St. Mary's Law Journal

Abstract forthcoming.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson

Stephen E Henderson

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

Implications For The Future Of Global Data Security And Privacy: The Territorial Application Of The Stored Communications Act And The Microsoft Case, Russell Hsiao

Catholic University Journal of Law and Technology

No abstract provided.

Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey

Michigan Telecommunications & Technology Law Review

The third-party doctrine is a long-standing tenant of Fourth Amendment law that allows law enforcement officers to utilize information that was released to a third party without the probable cause required for a traditional search warrant. This has allowed law enforcement agents to use confidential informants, undercover agents, and access bank records of suspected criminals. However, in a digital age where exponentially more information is shared with Internet Service Providers, e-mail hosts, and social media “friends,” the traditional thirdparty doctrine ideas allow law enforcement officers access to a cache of personal information and data with a standard below probable cause. …

Federal Programs And The Real Costs Of Policing, Rachel A. Harmon

Rachel A. Harmon

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs …

Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley

Michigan Law Review First Impressions

Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …