Law Commons^™

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

Law Faculty Scholarship

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine-the reasonable expectation of privacy teststruggles with conceptual clarity and predictability. The Supreme Court's recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the "maximalist" property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law-what …

Big Brother Is Scanning: The Widespread Implementation Of Alpr Technology In America’S Police Forces, Yash Dattani

Vanderbilt Journal of Entertainment & Technology Law

Automatic License Plate Readers (ALPRs) are an increasingly popular tool in police departments across the United States. At its core, ALPR technology functions in a relatively simple manner. The technology has two major components: the actual scanners, which record license plates, and the databases which collect, compile, and analyze this information for officers to access at the click of a button. Although this technology first came to the United States in 1998 as a form of rudimentary border security, its purpose and capabilities have rapidly grown. Now, in 2022, ALPR has evolved into a frighteningly powerful piece of technology, potentially …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

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

Publications

No abstract provided.

Smart Devices In Criminal Investigations: How Section 8 Of The Canadian Charter Of Rights And Freedoms Can Better Protect Privacy In The Search Of Technology And Seizure Of Information, Lee-Ann Conrod

LLM Theses

This thesis examines the jurisprudence from the Supreme Court of Canada (SCC) on informational privacy under section 8 of the Canadian Charter of Rights and Freedoms as it relates to searches of technology in the context of criminal investigations. The development and use of technology in criminal investigations will be detailed along with an overview of the current state of the law in this area. Challenges with the interpretation of section 8 demonstrate a prevalent uncertainty. This thesis proposes a new approach for the SCC to apply to cases where technology intersects with section 8 of the Charter. The proposal …

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 …

The Need To Criminalize Revenge Porn: How A Law Protecting Victims Can Avoid Running Afoul Of The First Amendment, Adrienne N. Kitchen

Chicago-Kent Law Review

Revenge porn occurs when someone posts sexually explicit images of their former paramour on the web, often with contact information for the victim’s work and home. There are thousands, perhaps tens of thousands, of victims. Victims lose or quit their jobs; they are harassed by strangers; some change their name or alter their appearance. Some victims resort to suicide; others are stalked, assaulted, or killed. Civil suits fail to remove the images or deter perpetrators. Current criminal laws are insufficient in several common instances. These shortcomings mean there is a need to criminalize revenge porn.

Revenge porn is obscene and …

Mug Shot Disclosure Under Foia: Does Privacy Or Public Interest Prevail?, Kathryn Shephard

Northwestern University Law Review

No abstract provided.

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Big Brother Or Little Brother? Surrendering Seizure Privacy For The Benefits Of Communication Technology, José F. Anderson

All Faculty Scholarship

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave …

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 …

Sneak And Peak Search Warrants, Donald E. Wilkes Jr.

Popular Media

In his recent article "Taking Liberty with Freedom," author Richard P. Moore reminds us that the USA Patriot Act, signed by President Bush last Oct. 26 in the wake of the Sept. 11 terrorist attacks, "gives the government the kind of sweeping powers of arrest, detention, surveillance, investigation, deportation, and search and seizure that ... assault ... our most basic freedoms."

I want to examine here a single section of the USA Patriot Act--section 213, definitely one of the most sinister provisions of this monstrous statute.

Recent Treaties, James H. Bloem

Vanderbilt Journal of Transnational Law

To obtain information on the financial dealings of organized crime in Switzerland, the United States must show both probable cause and the absence of a reasonable possibility of conviction without the information. Thus, Switzerland has preserved its prudent and traditional requirement of secrecy with respect to transactions of those who utilize its financial institutions. Because the Treaty was drafted in two different legal environments, conflicts may rise under it. The limitation on use of any disclosed information to investigations or proceedings for which the information originally was granted does not coincide with the United States rule of evidence that allows …

Wiretapping And Bugging: Striking A Balance Between Privacy And Law Enforcement, Kent Greenawalt

Faculty Scholarship

The conflict between individual privacy and the needs of law enforcement occurs at a number of points in our system of criminal justice. It is not unique to wiretapping and electronic eavesdropping, but the competing claims in that area do have their own special character. They are qualitatively different from those in regard to, say, confessions. The kinds of crimes and criminals affected are different, as are the relevant assertions about individual freedom.

Law enforcement officials, almost to a man, consider wiretapping and eavesdropping valuable weapons in the fight against crime. They are most helpful in regard to consensual crimes …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

ADMINISTRATIVE LAW--FINANCIAL RESPONSIBILITY ACT--REVOCATION OF DRIVER'S LICENSE WITHOUT HEARING

CONSTITUTIONAL LAW--ECONOMIC REGULATION--STATE COURT INTERPRETATIONS OF SUBSTANTIVE DUE PROCESS

CONSTITUTIONAL LAW--EMINENT DOMAIN FOR SLUM CLEARANCE--EFFECT OF SALE OR LEASE OF PROPERTY TO PRIVATE PERSONS FOR REDEVELOPMENT

CONSTITUTIONAL LAW--INTERGOVERNMENTAL RELATIONS--STATE SALES TAX ON INDEPENDENT CONTRACTOR DEALING WITH FEDERAL AGENCY WHOSE "ACTIVITIES" ARE EXEMPTED

CRIMINAL LAW--EFFECT OF PROOF OF COMPLETED CRIME ON CHARGE OF ATTEMPT--FATAL VARIANCE

FEDERAL JURISDICTION--FORUM NON CONVENIENS--STAY OF FEDERAL ACTION PENDING STATE DECISION

INSANE PERSONS--COMMITMENT PROCEEDINGS--REQUIREMENT OF REASONABLE NOTICE

RIGHT OF PRIVACY--PUBLICATION OF PICTURES AS OFFENSE TO "ORDINARY SENSIBILITIES"--QUESTION OF LAW OR FACT?

TRUSTS--DUALITY OF INTEREST--MERGER OF TITLE …