Law Commons^™

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

James Y. Stern

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Orin Kerr

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Orin Kerr

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Privacy Rights And Public Families, Khiara Bridges

Khiara M Bridges

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Cybersurveillance In A Free Society, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Age Verification In The 21st Century: Swiping Away Your Privacy, 23 J. Marshall J. Computer & Info. L. 363 (2005), John T. Cross

John Cross

Today a lot of private businesses have adopted the practice of driver's license swiping where proof of age or security issues arise. This practice has beneficial uses for both private entities, in identifying underage persons and those with fake identification, and law enforcement. However, the problem arise when the private sector, businesses are not using the information to merely identify underage customers or those with fake identification but store the information encoded on the barcode in a computer database. No federal laws and very few state laws regulate the collection and use of this information while the private sector is …

Do Sexting Prosecutions Violate Teenagers' Constitutional Rights?, Joanne Sweeny

JoAnne Sweeny

The media has recently been highlighting a rash of prosecutions of teenagers who engage in "sexting"--sending nude or sexually explicit images of themselves or their peers--under child pornography laws. These prosecutions have led to mass criticism for threatening teens with long prison terms and registration as sex offenders for activities that are perceived to be relatively innocent. Many, if not most, of these sexting teens are legally permitted to engage in sexual activities through their states' statutory rape laws, which leads to an absurd situation in which teens are permitted to engage in sex but not photograph it. This mismatch …

The Right Way To Protect Privacy Throughout The Internet Ecosystem, Daniel A. Lyons

Daniel Lyons

No abstract provided.

Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, Christopher Slobogin, James W. Hazel

Christopher Slobogin

Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gatheredb iological materials ent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It …

Is It Time For A Universal Genetic Forensic Database?, Christopher Slobogin, Ellen Wright Clayton, J. W. Hazel, B. A. Malin

Christopher Slobogin

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Is It Time For A Universal Genetic Forensic Database?, Christopher Slobogin, Ellen Wright Clayton, J. W. Hazel, B. A. Malin

Ellen Wright Clayton

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Privacy And The Right To One’S Image: A Cultural And Legal History, Samantha Barbas

Samantha Barbas

Published as Chapter 9 in Injury and Injustice: The Cultural Politics of Harm and Redress, Anne Bloom, David M. Engel & Michael McCann, eds.

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

H. Brian Holland

The Language-Game Of Privacy, Joshua A.T. Fairfield

Joshua A.T. Fairfield

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.

United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko

Greg Sergienko

Five years ago, in a contribution to these pages, I suggested that the Supreme Court's oldest precedents and the original intent of the framers of the Constitution precluded the use of evidence produced under a grant of immunity against the producer, even though the material produced included documents that the producer had not been compelled to write. This implied that information concealed with a cryptographic key could not be used in a criminal prosecution against someone from whom the key had been obtained under a grant of immunity. The issue, however, was doubtful given the tendency of the Court to …

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

Privacy In The Age Of The Hacker: Balancing Global Privacy And Data Security Law, Cunningham, Mckay, Mckay Cunningham

McKay Cunningham

The twin goals of privacy and data security share a fascinating symbiotic relationship: too much of one undermines the other. The international regulatory climate, embodied principally by the European Union’s 1995 Directive, increasingly promotes privacy. In the last two decades, fifty-three countries enacted national legislation largely patterned after the E.U. Directive. These laws, by and large, protect privacy by restricting data processing and data transfers.

At the same time, hacking, malware, and other cyber-threats continue to grow in frequency and sophistication. In 2010, one security firm recorded 286 million variants of malware and reported that 232.4 million identities were exposed. …

How Different Are Young Adults From Older Adults When It Comes To Information Privacy Attitudes & Policies?, Chris Jay Hoofnagle, Jennifer King, Su Li, Joseph Turow

Chris Jay Hoofnagle

Media reports teem with stories of young people posting salacious photos online, writing about alcohol-fueled misdeeds on social networking sites, and publicizing other ill-considered escapades that may haunt them in the future. These anecdotes are interpreted as representing a generation-wide shift in attitude toward information privacy. Many commentators therefore claim that young people “are less concerned with maintaining privacy than older people are.” Surprisingly, though, few empirical investigations have explored the privacy attitudes of young adults. This report is among the first quantitative studies evaluating young adults’ attitudes. It demonstrates that the picture is more nuanced than portrayed in the …

The Federal Trade Commission And Consumer Privacy In The Coming Decade, Joseph Turow, Chris Jay Hoofnagle, Deirdre K. Mulligan, Nathaniel Good, Jens Grossklags

Chris Jay Hoofnagle

The large majority of consumers believe that the term “privacy policy” describes a baseline level of information practices that protect their privacy. In short, “privacy,” like “free” before it, has taken on a normative meaning in the marketplace. When consumers see the term “privacy policy,” they believe that their personal information will be protected in specific ways; in particular, they assume that a website that advertises a privacy policy will not share their personal information. Of course, this is not the case. Privacy policies today come in all different flavors. Some companies make affirmative commitments not to share the personal …

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

Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan

Donald J. Kochan

Insuring Against Cyber Risk: The Evolution Of An Industry (Introduction), Christopher French

Christopher C. French

Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond

Elizabeth De Armond

No abstract provided.

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Russell A. Miller

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a …

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Mark Bartholomew

There is an inherent tension between an individual’s desire to safeguard her personal information and the expressive rights of businesses seeking to communicate that information to others. This tension has multiplied as consumers generate and businesses collect more and more personal data online, forcing efforts to strike an appropriate balance between privacy and commercial speech. No consensus on this balance has been reached. Some privacy scholars bemoan what they see as a slanted playing field in favor of those wishing to profit from the private details of other people’s lives. Others contend that the right in free expression must always …

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Samantha Barbas

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Saving Privacy From History, Samantha Barbas

Samantha Barbas

No abstract provided.

The Laws Of Image, Samantha Barbas

Samantha Barbas

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others. The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution …

The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas

Samantha Barbas

The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …