Fourth Amendment Commons^™

Yale Symposium: Unpacking Nsa's Global Problem, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Privacy In Social Media: To Tweet Or Not To Tweet?, Tara M. Breslawski

Touro Law Review

No abstract provided.

Bulk Telephony Metadata Collection And The Fourth Amendment: The Case For Revisiting The Third-Party Disclosure Doctrine In The Digital Age, 31 J. Marshall J. Info. Tech. & Privacy L. 191 (2014), Timothy Geverd

UIC John Marshall Journal of Information Technology & Privacy Law

This Article argues that federal courts should seize the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment jurisprudence. Specifically, this Article argues that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age, and that instead, Smith should apply more narrowly in the digital age. In so arguing, this Article advocates that courts apply a modified, twostep test to evaluating third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith …

Cause To Believe What? The Importance Of Defining A Search's Object—Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Oklahoma Law Review

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on …

Third Party Records Protection On The Model Of Heightened Scrutiny, Marc J. Blitz

Oklahoma Law Review

No abstract provided.

The Aba Standards For Criminal Justice: Law Enforcement Access To Third Party Records: Critical Perspectives From A Technology-Centered Approach To Quantitative Privacy, David C. Gray

Oklahoma Law Review

No abstract provided.

Ubiquitous Privacy, Thomas P. Crocker

Oklahoma Law Review

No abstract provided.

Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, Andrew G. Ferguson

Oklahoma Law Review

Before moving on to my contribution about how the growing reliance on big data analytics may necessitate a slight modification to the ABA Standards on Law Enforcement Access to Third Party Records (LEATPR Standards), I would like first to pay a few compliments to the drafters of the LEATPR Standards for producing such a systematic, thoughtful, and elegant framework for considering Fourth Amendment freedoms. As anyone who writes about or teaches the Fourth Amendment knows, the doctrine remains a theoretical muddle. Yet, despite a minefield of conflicting precedent, the drafters of the LEATPR Standards have managed to construct a defensible …

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Warrantless Government Drone Surveillance: A Challenge To The Fourth Amendment, 30 J. Marshall J. Info. Tech. & Privacy L. 155 (2013), Jennifer O'Brien

UIC John Marshall Journal of Information Technology & Privacy Law

The Federal Aviation Administration Modernization and Reform Act of 2012 aims to integrate drones into the United States national airspace by 2015. While the thought of prevalent private and public daily drone use might seem implausible now, the combination of this new legislation and the increasing availability of inexpensive, technologically advanced small drones will make it a reality. From detectaphones to pen registers and most recently, the GPS, the Supreme Court has faced a plethora of unreasonable search challenges to the warrantless use of such sense augmentation devices by law enforcement to collect information. Acting as the privacy safeguard of …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Faculty Scholarship

No abstract provided.

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

Student Speech Rights In The Digital Age, Mary-Rose Papandrea

Florida Law Review

For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Schools: Where Fewer Rights Are Reasonable? Why The Reasonableness Standard Is Inappropriate To Measure The Use Of Rfid Tracking Devices On Students, 28 J. Marshall J. Computer & Info. L. 411 (2011), Alexandra C. Hirsch

UIC John Marshall Journal of Information Technology & Privacy Law

In an unsuccessful attempt to heighten security, schools are implementing a technology that offers access to children’s personal information and minute-by-minute location. Although not entirely new, Radio Frequency Identification (RFID) technology use has recently been expanding within the school arena. Skeptics knowledgeable about the downfalls of the technology, however, have reason to be concerned. In order to understand the true urgency of this issue, this comment will explain the background of RFID technology, specifically what RFID tags are, how they are used, their purposes, and how they have become unsafe. Included will be an explanation of the reasons that schools …

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Famous For Fifteen Minutes: Ip And Internet Social Networking, Patricia S. Abril, Jonathan Darrow, Peter Ludlow, Michael J. Monahan

Articles

No abstract provided.

Bringing An End To Warrantless Cell Phone Searches, Bryan A. Stillwagon

Georgia Law Review

Cell phones keep society connected, and exploring their contents reveals a glimpse into the user's life. As technology develops and these phones advance, this glimpse becomes a more complete picture of the user's life. The Fourth Amendment speaks of a right to be secure against unreasonable searches and seizures, but this right is threatened when judges permit the few exceptions to the warrant requirement to envelop the general rule. This Note begins with a brief review of the history of both cellphones and warrantless searches, followed by the recent history of warrantless cell phone searches. While focusing on the search- …

The Online Zoom Lens: Why Internet Street-Level Mapping Technologies Demand Reconsideration Of The Modern-Day Tort Notion Of "Public Privacy", Andrew Lavoie

Georgia Law Review

Internet mapping technologies provide detailed,overhead views of our world and have been in existence for practically a decade. In 2007, however, several private companies expanded the technology and began offering street-level imagery as an extra feature for their online map users. Google, the most notable company to take this step, created "Street View," which allows users to see major cities and metropolitan areas around the world from the still-frame perspective of a car passing by. These images display with considerable clarity, not only skyscrapers, parks, and private homes, but also-and more importantly-vehicles, bicyclists, and people on the streets at the …

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

Journal Articles

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 …

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Journal Articles

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

Seeking Privacy: Examining A Role For The Fiduciary In Protecting Personal Information, Marcey L. Grigsby

NYLS Law Review

No abstract provided.

Data Matching, Data Mining, And Due Process, Daniel J. Steinbock

Georgia Law Review

The Article concerns the governmental use of computerized data matching (comparison of records) and data mining (profiling),which increasingly are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the total absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation before, or even after, the deprivation is imposed. The Article evaluates under Fourth Amendment and due process standards a variety of law enforcement activities data matching or data mining might instigate. After reviewing these activities' potential effects on private, governmental, and accuracy interests, …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

The Right Of Privacy Of Employees With Respect To Employer-Owned Computers And E-Mails, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Need For Revisions To The Law Of Wiretapping And Interception Of Email, Robert A. Pikowsky

Michigan Telecommunications & Technology Law Review

I argue that a person's privacy interest in his email is the same as his privacy interest in a telephone conversation. Moreover, the privacy interest in email remains unchanged regardless of whether it is intercepted in transmission or covertly accessed from the recipient's mailbox. If one accepts this assumption, it follows that the level of protection against surveillance by law enforcement officers should be the same[...] As technology continues to blur the distinction between wire and electronic communication, it becomes apparent that a new methodology must be developed in order to provide logical and consistent protection to private communications. The …