Law Commons^™

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Civilians In Cyberwarfare: Conscripts, Susan W. Brenner, Leo L. Clarke

Vanderbilt Journal of Transnational Law

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation's infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their …

The Weak Protection Of Strong Encryption: Passwords, Privacy, And Fifth Amendment Privilege, Nathan K. Mcgregor

Vanderbilt Journal of Entertainment & Technology Law

While the constitutional protection afforded private papers has waxed and waned for more than a century, the Supreme Court has greatly restricted the Fifth Amendment privilege against self-incrimination--at least as applied to voluntarily prepared documents. Specifically, where the government knows of the existence and location of subpoenaed documents, the Fifth Amendment guarantee will not justify a failure to produce them, unless the act of production would itself incriminate the defendant. However, the Self-Incrimination Clause still precludes the compelled creation of documents that are both incriminating and testimonial.

The "private papers" doctrine has remained relatively stable for approximately thirty years now, …

Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison

Vanderbilt Law Review

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …

"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie

Vanderbilt Law School Faculty Publications

In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …

The Fair Use Doctrine And Trackjacking: Beautiful Animal Or Destroyer Of Worlds?, S. Wayne Clemons, Jr.

Vanderbilt Journal of Entertainment & Technology Law

"Trackjacking" is the unauthorized replacement of the original soundtrack of an audiovisual recording, such as a movie or television show, with another that is designed to alter substantially the plot and/or characters of the original work. While trackjacking is a creative and entertaining form of art, it may also constitute copyright infringement if the original work is one that is copyrighted. However, if certain criteria are met, the "fair use" doctrine provides a mechanism for courts to excuse what otherwise would be considered copyright infringement. Because the unique nature of trackjacking allows the new work to be distributed in such …

Six Clicks Of Separation: The Legal Ramifications Of Employers Using Social Networking Sites To Research Applicants, Ian Byrnside

Vanderbilt Journal of Entertainment & Technology Law

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, college students and other job applicants voluntarily divulge an increasing amount of personal information on them, often unaware of the potential negative effects it may have on their search for employment. Employers are beginning to take note of this trend and are increasingly using applicants' social networking profiles to supplement traditional application information. Many applicants feel that employers should not base employment decisions on social networking profiles in any way and believe that it is illegal for employers to do so. Yet, it appears that employers that …

Government Data Mining And The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-scale data mining by federal agencies devoted to enforcing criminal and counter-terrorism laws has continued unabated. This paper addresses three puzzles about data mining. First, when data mining is undertaken by the government, does it implicate the Fourth Amendment? Second, does the analysis change when data mining is undertaken by private entities which then …

The Headscarf As Threat: A Comparison Of German And U.S. Legal Discourses, Robert A. Kahn

Vanderbilt Journal of Transnational Law

This Article compares how U.S. and German judges conceptualize the harm the headscarf poses to society. The examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching, and State v. Freeman, in which a Florida court held that a woman could not pose for a driver's license photograph wearing a garment (the niqab) that covered all of her face except her eyes. While judges and …

Special Project+ Privacy, Melody R. Barron

Vanderbilt Law Review

Privacy has long been a matter of particular concern in the minds of Americans. Indeed, privacy concerns were at the crux of the American Revolution. The earliest days of colonial life saw creation of laws protecting the individual against eavesdropping, and the sanctity of one's home. The Bill of Rights also reflects privacy interests. As America grew, technological advances in the dissemination of information caused public demands for protection of privacy rights; I Each year, the Vanderbilt Law Review publishes one issue with notes devoted solely to a topic of current interest. These notes collectively constitute the Special Project.

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson Jr.

Vanderbilt Journal of Entertainment & Technology Law

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …

Patients And Biobanks, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

The question about the privacy of medical information can be stated simply: To what extent can and should patients control what the medical record contains and who has access to it and for what purposes? Patients often have apparently conflicting views on this subject. On the one hand, we, as patients, say that we prize privacy and that we fear that information will be used to harm us. On the other hand, we value the benefits that come from improved communication among providers, such as having our visits covered by third party payers and advances in medical science, which often …

Transaction Surveillance By The Government, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization …

Subpoenas And Privacy, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an …

Accommodating Technological Innovation: Identity, Genetic Testing And The Internet, Gaia Bernstein

Vanderbilt Law Review

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I …

Almost Famous: Reality Television Participants As Limited-Purpose Public Figures, Darby Green

Vanderbilt Journal of Entertainment & Technology Law

This Note begins with an overview of the basic facets of privacy law, focusing on the tort of the public disclosure of private facts and its interaction with the First Amendment. Next, this Note explores the differences in rules for public, private, and involuntary public figures. The law of defamation is offered as a model for privacy law to emulate, specifically, the limited-purpose public figure created under Gertz and its progeny. Then, the issue of whether one's status as a public figure may diminish over the passage of time is considered. This Note posits that limited-purpose public figures should exist …

Toward Taping, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Numerous authors, from all points on the political spectrum, have advocated that police interrogations be taped. But police rarely record custodial questioning, at least in full, and only a handful of courts have found this failure objectionable. This commentary outlines three different constitutional grounds for mandating that such recording become a routine practice. To set up the constitutional argument, the article first outlines why taping is needed despite the elaborate rules that now govern interrogation. Put simply, the reasoning is as follows: the Miranda regime has failed, voluntariness should once again be the focal point of interrogation regulation, and taping …

Japan's Communications Interception Act: Unconstitutional Invasion Of Privacy Or Necessary Tool?, Lillian R. Gilmer

Vanderbilt Journal of Transnational Law

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a …

Privacy, Eh! The Impact Of Canada's Personal Information Protection And Electronic Documents Act On Transnational Business, Juliana M. Spaeth, Mark J. Plotkin, Sandra C. Sheets

Vanderbilt Journal of Entertainment & Technology Law

In 2002, the requirements imposed by PIPEDA will extend to encompass all personal health information. PIPEDA will ultimately extend to the collection, use, or disclosure of all personal information in the course of any commercial activity within a province in 2004. This change in Canadian law carries significant consequences for the general business practices of American companies that conduct, or may conduct, business with Canadians. It is therefore crucial for lawyers with clients collecting personal data on- and offline to familiarize themselves with its requirements in order to counsel clients effectively about their current and future obligations under this privacy …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …

The Architecture Of Privacy: Remaking Privacy In Cyberspace, Lawrence Lessig

Vanderbilt Journal of Entertainment & Technology Law

This is an essay about privacy. My aim is to understand privacy through these two very different ideas. Privacy, in the sense that I mean here, can be described by these two different ideas. It stands in competition with these ideas. It is that part of life that is left after one subtracts, as it were, the monitored and the searchable. A life where less is monitored is a life where more is private; and life where less can (legally or technologically) be searched is also a life where more is private. By understanding the technologies of these two different …

Filling The Black Hole Of Cyberspace: Legal Protections For Online Privacy, R. Craig Tolliver

Vanderbilt Journal of Entertainment & Technology Law

The Internet is a unique and wholly new medium of worldwide human communication. This pronouncement of the United States Supreme Court echoes what most of the American population has known for some time. The emergence of cyberspace has dramatically changed the nature of electronic communications, and consumers are conducting online transactions at a tremendous pace. While this revolution has obviously increased the amount and types of information available to American consumers, it has also achieved a different result: businesses now have access to an unprecedented amount of personal information. In turn, there exists a danger that this information will be …

Technologically-Assisted Physical Surveillance: The American Bar Association's Tentative Draft Standards, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As the name implies, the American Bar Association's Tentative Draft Standards Concerning Technologically-Assisted Physical Surveillance is a work in progress...Final approval by the ABA hierarchy is still some time away, so feedback could have an impact. Indeed, it is anticipated that the content of at least some of the standards will change prior to their submission to the House of Delegates...The work of the Task Force on Technology and Law Enforcement has persuasively demonstrated that some regulatory structure governing the use of physical surveillance technology is necessary. This work provides a model for future attempts to establish guidelines for other …

The Consensual Electronic Surveillance Experiment: State Courts React To "United States V. White", Melanie L. Black Dubis

Vanderbilt Law Review

It has long been recognized that a state, if its citizens so chose, may "serve as a laboratory" for economic and social legislation. In an era of new federalism, state courts have experimented by extending individual rights under state constitutions that the United States Supreme Court, beginning with the Burger Court, refused to recognize under the federal constitution. Although this approach has been criticized by the judiciary and academia, it continues to be a driving force in the development of individual rights.

In United States v. White, the Supreme Court held that the police practice of obtaining evidence with warrantless …

Private Lives, Public Selves, Jean B. Elshtain

Vanderbilt Law Review

What of the making public of a letter, what of the vocation of correspondent? Letters are a private genre, belonging in general, Kundera would say, to the domain of intimate life. When they "go public" some boundary is crossed, some violation is committed. Kundera's position hints that the great Oliver Wendell Holmes was perhaps a bit of a monster, seeming in his private life to be very much the "same" man as he was in his public vocation, except for his romantic effulgency with Clare Castletown. Reading this occasionally twittery and school boyish prose in Professor G. Edward White's article, …

The Constitutionality Of An Off-Dutysmoking Ban For Public Employees:Should The State Butt Out?, Elizabeth B. Thompson

Vanderbilt Law Review

During the past several years, restrictions imposed by states, cities,and municipalities on smoking in public areas have survived court challenges and become almost commonplace.' Likewise, both public and private employers have limited smoking in the workplace. A further restriction that seems to be emerging, however, is a refusal by both the state and a growing number of private employers to hire or to continue to employ smokers. These restrictions limit the employee's freedom to smoke not only in the workplace, but also after working hours and within the privacy of the worker's home.

This Note will address the constitutionality of …