Law Commons^™

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

William & Mary Bill of Rights Journal

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.

As for ambition, the Court …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Publications

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

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 …

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 …

Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott

Duke Law & Technology Review

After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to …

Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta

Maine Law Review

In Blethen Maine Newspapers, Inc. v. State, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, held that release of records relating to Attorney General G. Steven Rowe's investigation of alleged sexual abuse by Catholic priests was warranted under Maine's Freedom of Access Act (FOAA). Although such investigative records are designated confidential by statute, the majority held that the public's interest in the contents of the records mandated their disclosure after all information identifying persons other than the deceased priests had been redacted. The concurrence asserted that the majority had reached the correct conclusion, but in so …

Testimony @ House Energy And Commerce Subcommittee On Digital Commerce And Consumer Protection Hearing; "21st Century Trade Barriers: Protectionist Cross Border Data Flow Policies Impact On U.S. Jobs.", Jennifer Daskal

Jennifer Daskal

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Brian Larson

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Who's Watching The Kids?--The Use Of Peer-To-Peer Programs To Cyberstalk Children, Jessica Herndon

Oklahoma Journal of Law and Technology

No abstract provided.

Fbi's Carnivore: Under The Fourth Amendment And The Usa Patriot Act, Scott Griner

Oklahoma Journal of Law and Technology

No abstract provided.

Emailer Beware: The Fourth Amendment And Electronic Mail, E. Parker Lowe

Oklahoma Journal of Law and Technology

No abstract provided.

Health Information Technology And Hipaa: Can We Satisfy Security And Privacy Standards In The Digital Age, Robert Malone

Oklahoma Journal of Law and Technology

No abstract provided.

Looking For Lagniappe: Publicity As A Culprit To Social Networking Websites, Kristin Decker

Oklahoma Journal of Law and Technology

No abstract provided.

Not So Fast: Quon V. Arch Wireless Is Not Employees' License To Text The Workday Away, Amanda R. Higgins

Oklahoma Journal of Law and Technology

No abstract provided.

Getting Under Fido's Skin: Analyzing The Objections To Mandatory Pet Microchipping Laws, Stephen D. Lott

Oklahoma Journal of Law and Technology

No abstract provided.

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …

Iright: There's No App For That, Justin Hinderliter

Oklahoma Journal of Law and Technology

No abstract provided.

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

Comments To The Federal Trade Commission On The Can-Spam Rule Review, 16 C.F.R. Part 316, Project No. R711010, Roger Allan Ford

Law Faculty Scholarship

These comments respond to the Federal Trade Commission’s request for public comment on the CAN-SPAM Rule, 16 C.F.R. Part 316.

The CAN-SPAM Act set a minimum baseline for consumer protections that senders of unsolicited commercial email must respect. These protections have been largely effective at giving consumers the ability to manage how a large group of companies uses their email addresses for marketing. At the same time, the Act has had little effect on the volume of unsolicited commercial email or on the amount of email sent by scammers and fraudsters. The Act and its implementing Rule, then, have been …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

No abstract provided.

The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman

Pepperdine Law Review

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent. Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers. These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them. Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy. Scholarly commentary on these devices has largely concluded that their use requires a warrant. This Comment engages in a close examination of Fourth Amendment precedent and argues that, as …

Judicial Oversight Of Interception Of Communications In The United Kingdom: An Historical And Comparative Analysis, David G. Barnum

Georgia Journal of International & Comparative Law

No abstract provided.

Automating Threat Sharing: How Companies Can Best Ensure Liability Protection When Sharing Cyber Threat Information With Other Companies Or Organizations, Ari Schwartz, Sejal C. Shah, Matthew H. Mackenzie, Sheena Thomas, Tara Sugiyama Potashnik, Bri Law

University of Michigan Journal of Law Reform

This Article takes an in-depth look at the evolution of cybersecurity information sharing legislation, leading to the recent passage of the Cybersecurity Information Sharing Act (CISA) and offers insights into how automated information sharing mechanisms and associated requirements implemented pursuant to CISA can be leveraged to help ensure liability protections when engaging in cyber threat information sharing with and amongst other non-federal government entities.

Check Yes For Checkpoints: Suspicionless Stops And Ramifications For Missouri Motorists, Conner Harris

Missouri Law Review

One of the great advantages of living in a free society is the enjoyment of general privacy and freedom from unwarranted interference in one’s personal affairs. This advantage benefits citizens in both their private and public interactions. For example, it is expected one could drive to the store across town, the mall in a neighboring city, or somewhere on the other side of the country uninterrupted and unhindered. The Fourth Amendment to the United States Constitution codifies this privacy expectation as a right to be enjoyed by all within its reach. Specifically, the Fourth Amendment protects against “unreasonable searches and …

Why New Hampshire Must Update Rape Shield Laws, Amy Vorenberg

Law Faculty Scholarship

[Excerpt] “Recent research indicates that New Hampshire has some of the highest rates of sexual assault in the nation; nearly one in four New Hampshire women and one in 20 New Hampshire men will experience sexual assault. Although reporting a crime can be hard for anyone, sexual assault victims have particular reasons for not reporting. After an assault, a rape victim typically feels embarrassment, shame and fears reprisal (most of these crimes are committed by an acquaintance). The deeply personal nature of rape makes it uniquely traumatizing and confusing.”

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

All Faculty Scholarship

What type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions.