Communications Law Commons^™

Contextual Expectations Of Privacy, Andrew D. Selbst

Cardozo Law Review

Fourth Amendment search jurisprudence is nominally based on a "reasonable expectation of privacy," but actual doctrine is disconnected from society's conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by "privacy." Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum's theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …

A Victimless Sex Crime: The Case For Decriminalizing Consensual Teen Sexting, Joanna R. Lampe

University of Michigan Journal of Law Reform

As teenagers' access to cellular phones and the internet has increased over the past two decades, so has their ability to harm themselves and others through misuse of new technology. One risky behavior that has become common among teenagers is "sexting"--the digital sharing of sexually suggestive images. To combat the dangers of teen sexting, many states have criminalized the act. Criminalization does not resolve the issue of teen sexting, however, and in many cases it may cause additional harm. This Note reviews existing state laws related to teen sexting, and critiques these laws on constitutional and policy grounds. It then …

Birthing “Cla”: Critical Legal Activism, The Ip Wars And Forking The Law, Victoria Smith Ekstrand, Andrew Famiglietti, Suzanne V.L. Berg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel Ii: Critical Legal Activism And Netroots Movements, Victoria Smith Ekstrand, Brett Frischmann, John Tehranian, Siva Vaidhyanathan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Expanding Rape Shield Laws: Breaking Through Prejudice For Better Protection Of Battered Women, Sarah C. Ayres

Cardozo Journal of Equal Rights & Social Justice

The article argues for the expansion of rape shield laws to civil cases involving orders of protection, asserting that the exclusion of evidence regarding consensual sex between a victim and her abuser is crucial to counteract prejudicial stereotypes and provide better legal protection for battered women.

State V. Makor Rishon Hameuhad (Hatzofe) Ltd., Elyakim Rubinstein, Isaac Amit, Uzi Vogelman

Translated Opinions

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished …

"You May Have Already Won. . .": Telemarketing Fraud And The Need For A Federal Legislative Solution , Patrick E. Michela

Pepperdine Law Review

No abstract provided.

Who Watches The Watchmen? Big Brother's Use Of Wiretap Statutes To Place Civilians In Timeout, Travis S. Triano

Cardozo Law Review

No abstract provided.

Association For Civil Rights In Israel V. Israel Police, Dorit Beinisch, Asher Grunis, Miriam Naor, Esther Hayut, Hanan Melcer, Eliezer Rivlin, Edna Arbel

Translated Opinions

This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions concerning the constitutionality of some of the arrangements prescribed in the scope of the Criminal Procedure Act (Powers of Enforcement – Communications Data), 5768-2007, which came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”) and enables the Israeli investigatory authorities to obtain communications data from all the communications companies – the various cellular or …

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

Exploring The First Amendment Rights Of Teens In Relationship To Sexting And Censorship, Julia Halloran Mclaughlin

University of Michigan Journal of Law Reform

This Article explores child pornography law in relation to teen sexting conduct. Recently, some teens who engaged in teen sexting have been convicted under child pornography laws and have been required to register as sexual predators. The criminalization of teens for developmentally typical behavior, mimicking the conduct of adults, can result in grave harm to most teens. Furthermore, the application of child pornography laws to teen sexting conduct demonstrates the constitutional overbreadth of the current definition of child pornography. Photographs have an emblematic role in society-capturing and celebrating youth. Moreover, the creation of teen sexting images accompanies a teen's developmental …

Cyber Crime Control: Will Websites Ever Be Held Accountable For The Legal Activities They Profit From?, Ashley Ingber

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal landscape surrounding the liability of online platforms like Craigslist under Section 230 of the Communications Decency Act (CDA). While Section 230 currently shields Internet Service Providers (ISPs) from civil liability for third-party content, courts are increasingly narrowing its protections, particularly when platforms actively influence or profit from illegal activities. Criminal liability remains a significant exception to Section 230 immunity, and future legal developments may further restrict these protections, balancing free speech with accountability for online platforms.

Cartoons Aren't Real People, Too: Does The Regulation Of Virtual Child Pornography Violate The First Amendment And Criminalize Subversive Thought?, Keisha April

Cardozo Journal of Equal Rights & Social Justice

The note argues that the government's regulation of virtual child pornography, particularly under the Obscene Visual Representations of the Sexual Abuse of Children (OVR) provision of the PROTECT Act, raises significant First Amendment concerns. While the provision aims to protect children, it criminalizes depictions that do not involve real children, undermining free expression. The analysis critiques the OVR provision's overbreadth and vagueness, asserting that it chills artistic expression and fails to serve a compelling government interest. The note advocates for narrowing the provision to focus on actual harm rather than fictional depictions.

A Mosaic Shield: Maynard, The Fourth Amendment, And Privacy Rights In The Digital Age, Erin Smith Dennis

Cardozo Law Review

No abstract provided.

Such Visible Fiction: The Expansion Of Scott V. Harris To Prisoner Eighth Amendment Excessive Force Claims, Nina Frank

Cardozo Law Review

No abstract provided.

The Faces Of Student Cell Phone Regulations And The Implications Of Three Clauses Of The Federal Constitution, Joseph O. Oluwole, William Visotsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the constitutionality of school district regulations on student cell phones, focusing on the Due Process Clause, the Free Speech Clause, and the Fourth Amendment. It argues that while schools have the authority to regulate cell phones to maintain an educational environment, such regulations must comply with legal standards to avoid infringing on students' rights. The analysis concludes that schools can enforce cell phone policies but must adhere to constitutional protections, particularly the Tinker test for speech and the T.L.O. test for searches.

Transitioning To Free Speech: A Case Study On Legal Transfers In Jordanian Jurisprudence, Sarah Joy Gregory

Cardozo Law Review

No abstract provided.

An Act Of Criminal Skullduggery: A Critical Analysis Of The Circuit Split Resolved In United States V. Abuelhawa, C. William Ralston

West Virginia Law Review

No abstract provided.

Sexting And Teenagers: Omg R U Going 2 Jail???, Catherine Arcabascio

Richmond Journal of Law & Technology

Sexting is a relatively recent practice engaged in by the young, and sometimes not-so-young, and foolish. “Sexting” is “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.”

The Failure Of Sexting Criminalization: A Plea For The Exercise Of Prosecutorial Restraint, Robert H. Wood

Michigan Telecommunications & Technology Law Review

The purpose of this Essay is to explore the various legal approaches to the sexting phenomenon through an analysis of a decision by the United States District Court for the Middle District of Pennsylvania, which granted a temporary restraining order enjoining the prosecution of sexting teens on constitutional grounds, and an examination of current and pending legislative attempts to deal with the sexting phenomenon. Section I describes the facts leading up to the district court decision and its subsequent holding. Section II examines the approaches to sexting prosecution and legislation taken by other states. Section III analyzes the legal issues …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …

Myspace In A Post-Grokster World: Digital Finger Pointing For Offenses Perpetrated Through Use Of Social Networking Sites After Mgm V. Grokster, Cheryl J. Eisner

Cardozo Public Law, Policy & Ethics Journal

The note examines the dismissal of a negligence lawsuit against MySpace, arguing that interactive computer services should not be held liable for offline harms committed by users. It emphasizes the importance of protecting such platforms under the Communications Decency Act (CDA) and highlights the need to balance free speech and technological development against concerns for user safety.

Are Journalists Privileged?: Panel Discussion, Anthony Lewis, Max Frankel, Victor Kovner

Cardozo Law Review

No abstract provided.

A Reporter Keeping Confidences: More Important Than Ever, David Rudenstine

Cardozo Law Review

No abstract provided.

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees-the Sixth Amendment right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the …

Fencing In The Frontier: A Look Into The Limits Of Mail Fraud, Kristen Kate Orr

Kentucky Law Journal

No abstract provided.

Preventing A Modern Panopticon: Law Enforcement Acquisition Of Real-Time Cellular Tracking Data, Steven B. Toeniskoetter

Richmond Journal of Law & Technology

Nineteenth Century philosopher Jeremy Bentham designed a prison system known as the Panopticon which was arranged in such a way that a single guard could, at any given time, view the activities and whereabouts of any particular prisoner. Bentham designed the prison in such a way that the prisoners could never tell whether they were being watched. Twentieth Century French philosopher Michel Foucault further considered use of the Panopticon as a means of societal control through fear in his seminal book Discipline and Punish: The Birth of the Prison.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …