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Full-Text Articles in Law
Perils Of The Reverse Silver Platter Under U.S. Border Patrol Operations, D. Anthony
Perils Of The Reverse Silver Platter Under U.S. Border Patrol Operations, D. Anthony
University of Massachusetts Law Review
In the face of expanding U.S. Border Patrol operations across the country, that agency often acquires evidence during its searches that is unrelated to immigration or other federal crimes but may involve state crimes. States are then faced with the question of whether to accept such evidence for state prosecutions when it was lawfully obtained by federal agents consistent with federal law but in violation of the state’s own search and seizure provisions. Sometimes referred to as “reverse silver platter” evidence, states have come to widely varying conclusions as to the admissibility of federally obtained evidence that would clearly have …
Keep Out! The Efficacy Of Trespass, Nuisance And Privacy Torts As Applied To Drones, Hillary B. Farber
Keep Out! The Efficacy Of Trespass, Nuisance And Privacy Torts As Applied To Drones, Hillary B. Farber
Faculty Publications
The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.
We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new …
Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele
Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele
Faculty Publications
Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …
The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele
The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele
Faculty Publications
This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But …
The New American Privacy, Richard J. Peltz-Steele
The New American Privacy, Richard J. Peltz-Steele
Faculty Publications
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …
Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber
Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber
Faculty Publications
This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.
A Parent's "Apparent" Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children's Bedrooms, Hillary B. Farber
A Parent's "Apparent" Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children's Bedrooms, Hillary B. Farber
Faculty Publications
The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between "common" and private areas, and inquire into any agreements - formal or informal - that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance …
Nevada Case Threatens To Expand Terry Stops, Shaun B. Spencer
Nevada Case Threatens To Expand Terry Stops, Shaun B. Spencer
Faculty Publications
This term, the U.S. Supreme Court will review a Nevada decision authorizing police to arrest people for refusing to identify themselves. If affirmed, the decision could reshape how privacy is viewed in the criminal context throughout the United States, and could prompt the Massachusetts Supreme Judicial Court to depart from the Supreme Court’s approach to stop-and-frisk cases. The case is Hiibel v. Sixth Judicial District Court, 59 P.3d 1201 (Nev. 2002), cert. granted, 124 S. Ct. 430 (2003).
Reasonable Expectations And The Erosion Of Privacy, Shaun Spencer
Reasonable Expectations And The Erosion Of Privacy, Shaun Spencer
Faculty Publications
This Article examines how the prevailing legal conception of privacy facilitates the erosion of privacy. The law generally measures privacy by reference to society’s reasonable expectation of privacy. If we think of the universe of legally private matters as a sphere, the sphere will contract (or least in theory) expand in accordance with changing social expectations. This expectations-driven conception of privacy in effect establishes a privacy marketplace, analogous in both a literal and metaphorical sense to a marketplace of ideas. In this marketplace, societal expectations of privacy fluctuate in response to changing social practices. For this reason, privacy is susceptible …