Law Commons^™

The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr

Orin Kerr

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …

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 …

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance

Jason P. Nance

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department …

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

Stephen E Henderson

Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller

Teresa A. Miller

In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches. The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …

United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones

Lyrissa Barnett Lidsky

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

Richard Warner

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

War Against Muslims Post 9/11?, Alev Dudek

Alev Dudek

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Howard M Wasserman

No abstract provided.

Csi Las Vegas: Privacy, Policing, And Profiteering In Casino Structured Intelligence, Jessica D. Gabel

Jessica Gabel Cino

This Article argues that the intricate, vast amounts of consumer information compiled through casino structured intelligence require greater protection and oversight in the contexts of both bankruptcy and law enforcement. Section II examines the various types of casino technology and information gathering that casinos perform. Section III considers the available protections of private information in terms of security breaches, law enforcement sharing, and sales in the context of a bankruptcy. Section IV discusses additional safeguards and ethical concerns that should be considered as casinos continue to increase their data mining efforts. Finally, Section V concludes that, minimally, consumers are entitled …

Monitoring, Control And Surveillance Of Protected Areas And Specially Managed Areas In The Marine Domain, Denzil Miller, N Slicer, Quentin Hanich

Quentin Hanich

A checklist is provided for monitoring, control and surveillance (MCS) actions to be applied in the areal-based management of marine fisheries and attached biodiversity conservation needs. The application of MCS to underpin compliance enforcement in marine protected and specially managed areas is seen as important in addressing such needs. Spatial, temporal, management and practical considerations are identified as important implementing considerations for effective MCS-based compliance enforcement. Most notably, human activity impact mitigation appears to possess the greatest potential to reduce potentially-harmful and cumulative long-term effects across all relevant spatial-temporal ranges considered. Equally, selection of suitable MCS approaches requires careful consideration …

Monitoring, Control And Surveillance: Regional Issues And Needs. Background Paper For The Rpoa Mcs Workshop, Mary Ann Palma, Ben Tsamenyi, Quentin Hanich

Quentin Hanich

No abstract provided.

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

A. Michael Froomkin

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem. Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to …

Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald

Susan Freiwald

Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance …

Self, Privacy, And Power: Is It All Over? (With R. Sloan), Richard Warner

Richard Warner

The realization of a multifaceted self is an ideal one strives to realize. One realizes such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself when others may collect and how they may use your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here: informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the …

Orwellian Surveillance Of Vehicular Travels, Sam Hanna

Sam Hanna

What would someone learn about you if all your automobile travels were ubiquitously tracked beginning today? Creating an indefinite database of a person’s previous automobile travels to formulate deductions on intimate details of people's lives is precisely what law enforcement agencies are currently able to accomplish with automatic license plate recognition (“ALPR”). With the ubiquity of ALPR cameras, continuous government surveillance of automobile travels is no longer a figment of the imagination. Consequently, the judicial and legislative branches of government must embark on balancing the private and public interests implicated by this technology. Failure to set suitable boundaries around the …

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Stephen E Henderson

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

Quoted In Usa Today Article "Judge's Strike At U.S. Surveillance Won't Be Last Word", Jimmy Gurule

Jimmy Gurule

Jimmy Gurule was quoted in the USA Today article "Judge's strike at U.S. surveillance won't be last word" by Kevin Johnson and Richard Wolf on December 17, 2013. "It is not clear one way or another how this will be ultimately decided,'' said University of Notre Dame law professor Jimmy Gurule, who applauded Leon's decision as a "victory for the U.S. Constitution and the rule of law.''

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

Chasing Bits Across Borders, Patricia L. Bellia

Patricia L. Bellia

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework …

Surveillance Law Through Cyberlaw's Lens, Patricia L. Bellia

Patricia L. Bellia

The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans' concern about internet privacy. Although calls to limit the government's surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act's sunset date provides Congress with an opportunity to revisit that framework.

This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic …

The Memory Gap In Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because …

Spyware And The Limits Of Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

For policymakers, litigants, and commentators seeking to address the threats digital technology poses for privacy, electronic surveillance law remains a weapon of choice. The debate over how best to respond to the spyware problem provides only the most recent illustration of that fact. Although there is much controversy over how to define spyware, that label encompasses at least some software that monitors a computer user's electronic communications. Federal surveillance statutes thus present an intuitive fit for responding to the regulatory challenges of spyware, because those statutes bar the unauthorized acquisition of electronic communications and related data in some circumstances. Indeed, …

Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald

Patricia L. Bellia

The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues …

Escape Into The Panopticon: Virtual Worlds And The Surveillance Society, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Not available.

Biometric Id Cybersurveillance, Margaret Hum

Margaret Hu

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

The Not-So-Simple Saga Of Edward And Barack..., Michael I. Niman Ph.D.

Michael I Niman Ph.D.

It reads like a political thriller. An NSA spook, Edward Snowden, meets his conscience, blows the whistle on a massive secret attack on the Fourth Amendment, and is pursued globally by an obsessed president. Spice things up with a bit of character development cross-pollinated with a history lesson. First there’s Darth President. His administration has earned the distinction of invoking the Espionage Act of 1917 (a constitutionally questionable World War One relic) more than all other presidents in the previous 96 years combined—by a factor of two. The Obama administration has charged eight people under the act. All previous administrations …

Securing Maritime Australia: Developments In Maritime Surveillance And Security, Clive Schofield, Ben Tsamenyi, Mary Ann Palma

Professor Ben M Tsamenyi

A long coastline and extensive maritime claims mean that Australia benefits from and has responsibility for an enormous maritime jurisdiction.Within this offshore area Australia faces significant, varied, and complex maritime security and ocean policy challenges. In response, Australia has taken a number of innovative steps toward enhancing its maritime security. This article will review Australia’s past practice together with some of the more recent developments in this context, particularly efforts to enhance offshore maritime surveillance and enforcement, such as the creation of the Taskforce on Offshore Maritime Security and Border Protection Command, establishment of the Australian Maritime Identification System, and …

A Scoping Study Into Timor Leste Legislation And Policies Relating To Fisheries Monitoring, Control And Surveillance, Quentin Hanich, Martin Tsamenyi

Professor Ben M Tsamenyi

No abstract provided.

Monitoring, Control And Surveillance: Regional Issues And Needs. Background Paper For The Rpoa Mcs Workshop, Mary Ann Palma, Ben Tsamenyi, Quentin Hanich

Professor Ben M Tsamenyi

No abstract provided.