Fourth Amendment Commons^™

The Case For Stewart Over Harlan On 24/7 Physical Surveillance, Afsheen John Radsan

Faculty Scholarship

This Article explains why the government’s physical surveillance can reach a point in terms of duration and intensity that it becomes a “search” under the Fourth Amendment. As references, Katz v. United States and Kyllo v. United States stand out from the canon. Katz, decided in 1967, swept away a prior emphasis on property rights and trespass laws to hold that the electronic monitoring of a phone booth was a search. Since then, the two-part test from Justice Harlan’s concurring opinion has received as much attention as the totality-of-the-circumstances test in Justice Stewart’s majority opinion. Kyllo, decided just months before …

Do We Need A New Fourth Amendment?, Orin S. Kerr

Michigan Law Review

Slobogin's book offers a new conceptualization of the Fourth Amendment rooted in what he calls the proportionality principle: An investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes . Slobogin roots this principle in Terry v. Ohio and its pragmatic balancing of law-enforcement and privacy interests. To determine how much justification the Fourth Amendment requires, Slobogin argues, courts should assess the intrusiveness of the investigatory technique and then set a proportionate threshold of proof that the government must show. The …

National Security, Policing, And The Fourth Amendment: A New Perspective On Hiibel, Evan N. Turgeon

Buffalo Public Interest Law Journal

No abstract provided.

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

Echelon's Effect: The Obsolescence Of The U.S. Foreign Intelligence Legal Regime, Matt Bedan

Federal Communications Law Journal

The technological progress of the past thirty years has vastly increased the surveillance capabilities of the global intelligence community. At the same time, the law governing the use of this technology and its consequent information has remained largely static. This lack of adjustment, for better or worse, has rendered federal foreign intelligence surveillance law irrelevant in many respects.

The Bush Administration's Terrorist Surveillance Program And The Fourth Amendment's Warrant Requirement: Lessons From Justice Powell And The Keith Case, Tracey Maclin

UF Law Faculty Publications

This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration's claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Providing Material Support To Violate The Constitution: The Usa Patriot Act And Its Assault On The 4th Amendment, Christopher Metzler

North Carolina Central Law Review

No abstract provided.

Navigating Communications Regulation In The Wake Of 9/11, Jamie S. Gorelick, John H. Harwood Ii, Heather Zachary

Federal Communications Law Journal

In no industry has the impact of the events of September 11, 2001 ("9/11") been felt more strongly than in the communications industry. After 9/11, as the American people demanded a greater sense of security, Congress and the executive branch agencies reacted with new laws, new regulations, and new practices designed to protect our nation's critical communications infrastructure and enhance the ability of law enforcement and intelligence agencies to investigate those who would do us harm. The U.S. communications providers could do so consistent with their responsibilities to customers and to shareholders. That partnership, based upon rules developed over decades, …

Protecting The Lady From Toledo: Post-Usa Patriot Act Electronic Surveillance At The Library, Susan Nevelow Mart

Publications

Library patrons are worried about the government looking over their shoulder while they read and surf the Internet. Because of the broad provisions of the USA PATRIOT Act, the lack of judicial and legislative oversight, the potential for content overcollection, and the ease with which applications for pen register, section 215 orders, or national security letters can be obtained, these fears cannot be dismissed.

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …

Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr

Michigan Telecommunications & Technology Law Review

"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments …

Passenger Profiling: A Greater Terror Than Terrorism Itself, 32 J. Marshall L. Rev. 167 (1998), Donna Smith

UIC Law Review

No abstract provided.

The Buck Stops Here: Illinois Criminalizes Support For International Terrorism, 30 J. Marshall L. Rev. 871 (1997), Victoria Meyerov

UIC Law Review

No abstract provided.

Constitutional Law - Fourth Amendment - Conduct Of An Effective Foreign Policy Demands That Presidential Power To Conduct Electronic Surveillance For Foreign Affaris Purposes Not Be Subjected To Warrant Requirement, And That Subsequent Judicial Review Be Limited, Mark R. Cuker

Villanova Law Review (1956 - )

No abstract provided.