Law Commons^™

Two Visions Of Digital Sovereignty, Sujit Raman

Joint PIJIP/TLS Research Paper Series

No abstract provided.

A Trusted Framework For Cross-Border Data Flows, Alex Joel

Joint PIJIP/TLS Research Paper Series

The German Marshall Fund of the United States (GMF), in cooperation with the Tech, Law and Security Program (TLS) of the American University Washington College of Law, and with support from Microsoft, convened a Global Taskforce to Promote Trusted Sharing of Data comprising experts from civil society, academia, and industry to submit proposals for harmonizing approaches to global data use and sharing. Former US Ambassador to the Organisation for Economic Co-operation and Development (OECD) and GMF Distinguished Fellow Karen Kornbluh and Microsoft Chief Privacy Officer and Corporate Vice President Julie Brill co-chaired the taskforce; TLS Senior Project Director Alex Joel …

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Stars, Stripes, And Surveillance: The United States' Failure To Regulate Data Privacy, Sam Begland

American University Law Review

In the wake of the United States Supreme Court’s devastating decision to strip Americans of their constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, data privacy is more salient than ever. Without adequate data regulations, state governments and anti-abortion activists alike can harass and prosecute pregnant people attempting to exercise their bodily autonomy. This comment argues that the United States has violated its obligations under the International Covenant on Civil and Political Rights (ICCPR) Article 17 by failing to protect against interference with the use and collection of reproductive health data. Further, this comment analyzes interpretations of …

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.

The Need For An Australian Regulatory Code For The Use Of Artificial Intelligence (Ai) In Military Application, Sascha-Dominik Dov Bachmann, Richard V. Grant

American University National Security Law Brief

Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of …

Hanging In The Balance: An Assessment Of European Versus American Data Privacy Laws And Threats To U.S. National Security, Dara Paleski

American University National Security Law Brief

Social media has quickly become an integral part of modern-day life, keeping the world connected to friends, family and current events. Social media, and the data collected from it, also play a crucial role in intelligence gathering and the safeguarding of national security. It is estimated that about 80-95% of information that is collected for intelligence missions is found freely throughout the internet or other publicly available sources. This type of information has been dubbed SOCMINT (Social Media Intelligence) and it has become a crucial tool within the intelligence community. After the Edward Snowden leaks in 2013 revealed a global …

Securing Patent Law, Charles Duan

Articles in Law Reviews & Other Academic Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

Sunshine Laws Behind The Clouds: Limited Transparency In A Time Of National Emergency, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

The COVID-19 pandemic dramatically changed the way citizens lived their lives, businesses operated, and governments functioned. With most people forced to stay home, the pandemic also disrupted how people received their news and other essential information. Public records and public meetings had to adapt to face the growing challenges in a locked-down world. While some governmental bodies were able to keep up with the threat that COVID-19 posed against transparency, others either failed to acclimate to the new normal or actively took advantage of the circumstances to limit how much the public knew not only about the crisis, but about …

Persistent Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

Persistent surveillance technologies grant police vast new investigative capabilities. The technologies both monitor targeted areas and generate databases of searchable information about people, places, and patterns that can be connected and accessed for criminal prosecutions.

In the face of this growing police surveillance, courts have struggled to make sense of a fragmented Fourth Amendment doctrine. The Supreme Court has offered some clues that “digital may be different” when it comes to surveillance, but lower courts have been left struggling to apply old law to new technologies. Warrantless use of persistent surveillance technologies raises hard questions about when a “search” occurs …

Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Criminalizing Asylum: Dna Testing Asylum Seekers Violates Privacy Rights, Scarlett L. Montenegro

American University Journal of Gender, Social Policy & the Law

Introduction.

On June 16, 2015, President Trump announced his 2016 presidential campaign and claimed that Mexicans are criminals who “[h]ave lots of problems . . . they’re bringing drugs. They’re bringing crime. They’re rapists . . . It’s coming from all over . . . Latin America.” President Trump has publicly expressed his hostility towards immigrants by calling them “animals” and blaming them for drugs and gangs in the United States. While in office, President Trump tweeted that immigrants were invading the United States and suggested that “we must immediately, with no Judges or Court Cases, bring them back from …

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Borders And Bits, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Cloudy With A Chance Of Abused Privacy Rights: Modifying Third-Party Fourth Amendment Standing Doctrine Post-Spokeo, Sarah E. Pugh

American University Law Review

No abstract provided.

Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Can The Government Deport Immigrants Using Information It Encouraged Them To Provide?, Amanda Frost

Articles in Law Reviews & Other Academic Journals

This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any …

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

What is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education …

Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Personal Curtilage: Fourth Amendment Security In Public, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on …

Mapping Today's Cybersecurity Landscape, Jorge L. Contreras, Laura Denardis, Melanie Teplinsky

American University Law Review

No abstract provided.

Hacker's Delight: Law Firm Risk And Liability In The Cyber Age, Michael Mcnerney, Emilian Papadopoulos

American University Law Review

No abstract provided.

Identity Crisis: Seeking A Unified Approach To Plaintiff Standing For Data Security Breaches Of Sensitive Personal Information, Miles L. Galbraith

American University Law Review

No abstract provided.

Reining In The Rogue Employee: The Fourth Circuit Limits Employee Liability Under The Cfaa, Danielle E. Sunberg

American University Law Review

No abstract provided.

Regulating Information Security In The Government Contracting Industry: Will The Rising Tide Lift All The Boats, Keir X. Bancroft

American University Law Review

No abstract provided.

Toward Cyberpeace: Managing Cyberattacks Through Polycentric Governance, Scott J. Shackelford

American University Law Review

No abstract provided.