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Articles 271 - 300 of 367
Full-Text Articles in Fourth Amendment
The Fourth Amendment In A Digital World, Laura K. Donohue
The Fourth Amendment In A Digital World, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
Fourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely—(a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international—are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. A necessary first step for the Court is to reconsider the theoretical underpinning of the Fourth Amendment, to allow for the evolution of a …
Policing Predictive Policing, Andrew Ferguson
Policing Predictive Policing, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
Predictive policing is sweeping the nation, promising the holy grail of policing – preventing crime before it happens. Police have embraced predictive analytics and data-driven metrics to improve law enforcement tactics, practice, and strategy. Predictive “hot spots” become targets for intensive police surveillance. Targeted “hot people” become suspects. In big cities and small towns, data-based predictions drive police patrol schedules. Risk assessment algorithms target suspicious individuals. Increased data collection fuels a growing feedback loop requiring more robust data crunching systems.All of these predictive innovations share one thing in common: a belief that crime can be understood by identifying and analyzing …
The 'Smart' Fourth Amendment, Andrew Ferguson
The 'Smart' Fourth Amendment, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
“Smart” devices radiate data, detailing a continuous, intimate, and revealing pattern of daily life. Billions of sensors will soon collect data from smartphones, smart homes, smart cars, medical devices and an evolving assortment of consumer and commercial products. But, what are these data trails to the Fourth Amendment? Does data emanating from devices on or about our bodies, houses, things, and digital effects fall within the Fourth Amendment’s protection of “persons, homes, papers, or effects”? Does interception of this information violate a “reasonable expectation of privacy?”The “Internet of Things” and the growing proliferation of smart devices create new opportunities for …
Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson
Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …
Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle
Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle
Michigan Journal of Race and Law
This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these …
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson
Other Faculty Publications
Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …
That ‘70s Show: Why The 11th Circuit Was Wrong To Rely On Cases From The 1970s To Decide A Cell-Phone Tracking Case, David Oscar Markus, Nathan Freed Wessler
That ‘70s Show: Why The 11th Circuit Was Wrong To Rely On Cases From The 1970s To Decide A Cell-Phone Tracking Case, David Oscar Markus, Nathan Freed Wessler
University of Miami Law Review
In light of society's increasing reliance on technology, this article explores a critical question – that of the Fourth Amendment’s protection over privacy in the digital age. Specifically, this article addresses how the law currently fails to protect the privacy of one’s cell phone records and its ramifications. By highlighting the antiquated precedent leading up to the Eleventh Circuit’s ruling in United States v. Davis, this article calls on the judiciary to find a more appropriate balance for protecting the right to privacy in a modern society.
Cellphones, Stingrays, And Searches! An Inquiry Into The Legality Of Cellular Location Information, Jeremy H. D'Amico
Cellphones, Stingrays, And Searches! An Inquiry Into The Legality Of Cellular Location Information, Jeremy H. D'Amico
University of Miami Law Review
Can the Fourth Amendment protect an individual’s right privacy by preventing the disclosure of her location through cell site location information? Does it currently? Should it? Many court opinions answer these questions in both the affirmative and the negative. The rationale underlying each conclusion is disparate. Some rely on statutory regimes, others rely on the United States Supreme Court’s interpretation of reasonableness. However, Cell Site Location Information is a technology that requires uniformity in its interpretation. This note investigates the different interpretations of the Fourth Amendment as it relates to Cell Site Location Information. It explains the technology behind Cell …
If You Fly A Drone, So Can Police, Stephen Henderson
If You Fly A Drone, So Can Police, Stephen Henderson
Other Faculty Publications
Written for Slate's Future Tense.According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...
Time To Rethink Cybersecurity Reform: The Opm Data Breach And The Case For Centralized Cybersecurity Infrastructure, Zachary Figueroa
Time To Rethink Cybersecurity Reform: The Opm Data Breach And The Case For Centralized Cybersecurity Infrastructure, Zachary Figueroa
Catholic University Journal of Law and Technology
No abstract provided.
Decrypting Our Security: A Bipartisan Argument For A Rational Solution To The Encryption Challenge, Jamil N. Jaffer, Daniel J. Rosenthal
Decrypting Our Security: A Bipartisan Argument For A Rational Solution To The Encryption Challenge, Jamil N. Jaffer, Daniel J. Rosenthal
Catholic University Journal of Law and Technology
No abstract provided.
The Connected State Of Things: A Lawyer’S Survival Guide In An Internet Of Things World, Antigone Peyton
The Connected State Of Things: A Lawyer’S Survival Guide In An Internet Of Things World, Antigone Peyton
Catholic University Journal of Law and Technology
No abstract provided.
Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen Henderson
Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen Henderson
Other Faculty Publications
The dispute between the FBI and Apple Inc. over the unlocking of the iPhone used by one of the San Bernadino shooters is important to all Americans. And so it's good that it is getting a wide airing. But when it comes to issues that have complicated tradeoffs, it can be important not just that we have the conversation, but that we use the right words. And here the debate deserves very mixed reviews. . . .
Duty Of Candor In The Digital Age: The Need For Heightened Judicial Supervision Of Stingray Searches, Andrew Hemmer
Duty Of Candor In The Digital Age: The Need For Heightened Judicial Supervision Of Stingray Searches, Andrew Hemmer
Chicago-Kent Law Review
This Note explores the constitutional implications of the use of a device known as the “Stingray” in criminal investigations. This device masquerades as a cell phone tower and forces all cell phones within a considerable range to connect to it, transmitting data and allowing law enforcement to ascertain the location of each cell phone. The use of Stingrays raises important Fourth Amendment concerns that have been brought to light most significantly by the 2008 federal prosecution of Daniel Rigmaiden. This Note argues that Stingray use constitutes a Fourth Amendment search and that a new standard of warrant requirements is needed …
Rfid Implementation: Testing In Prisons And Parolees For The Greater Good, 33 J. Marshall J. Info. Tech. & Privacy L. 22 (2016), Mirko Akrap
UIC John Marshall Journal of Information Technology & Privacy Law
No abstract provided.
Post Quon: An Analysis Of The Evolution Of New Media And The Employment Relationship, John H. Shannon, Susan A. O’Sullivan-Gavin
Post Quon: An Analysis Of The Evolution Of New Media And The Employment Relationship, John H. Shannon, Susan A. O’Sullivan-Gavin
Journal of Business & Technology Law
No abstract provided.
A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson
A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson
Faculty Articles
In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson
Faculty Articles
When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …
Policing Criminal Justice Data, Wayne Logan, Andrew Ferguson
Policing Criminal Justice Data, Wayne Logan, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
This article addresses a matter of fundamental importance to the criminal justice system: the presence of erroneous information in government databases and the limited government accountability and legal remedies for the harm that it causes individuals. While a substantial literature exists on the liberty and privacy perils of large multi-source data assemblage, often termed "big data," this article addresses the risks associated with the collection, generation and use of "small data" (i.e., individual-level, discrete data points). Because small data provides the building blocks for all data-driven systems, enhancing its quality will have a significant positive effect on the criminal justice …
The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson
The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
By 2020 there will be billions of “things” connected through the “Internet of Things.” These smart devices built within our homes, cars, smartphones, clothing, and accessories present new possibilities for technological surveillance for law enforcement. This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This article addresses how a Fourth Amendment built on old-fashioned “effects” can address a new world when things are no longer just inactive, static objects, but objects that create and …
Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport
Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport
Catholic University Journal of Law and Technology
No abstract provided.
Small Data Surveillance V. Big Data Cybersurveillance, Margaret Hu
Small Data Surveillance V. Big Data Cybersurveillance, Margaret Hu
Pepperdine Law Review
This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals' digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the …
Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin
Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin
Chicago-Kent Law Review
What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …
How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian M. Halliburton
How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian M. Halliburton
Akron Law Review
With each passing day, new technologies push the horizons of official government investigative and surveillance activity deeper and deeper into the mind and consciousness of the surveilled subject. While law enforcement agencies have always relied on observing the behavior and activity of suspicious targets, and there has been little judicial ink spent preserving the confidentiality of such observable activity, the law has been slow to respond to rapid increases in the capacity or scope of official observation that the advance of technologically sophisticated surveillance techniques helped facilitate. The sampling of techniques at the center of this Article allow the operators …
Carpe Diem: Privacy Protection In Employment Act, Ariana R. Levinson
Carpe Diem: Privacy Protection In Employment Act, Ariana R. Levinson
Akron Law Review
What these employees have in common is that their employers technologically monitored them, invading their privacy, yet their lawsuits were dismissed.6 Indeed, scholars generally agree that the law in the United States fails to adequately protect private sector employees from technological monitoring by their employers.7 This article proposes a solution: federal legislation intended to permit private sector employers to monitor their employees when necessary but to also provide their employees adequate privacy protection.8 Section II reviews the nature and extent of the problem of technological monitoring of employees by their employers. Section III surveys the laws and proposed legislation that …
Coming To A Car Dealership Near You: Standardizing Event Data Recorder Technology Use In Automobiles, Kara Ryan
Coming To A Car Dealership Near You: Standardizing Event Data Recorder Technology Use In Automobiles, Kara Ryan
Chicago-Kent Law Review
Event Data Recorders are receiving more attention as owners of automobiles have begun to realize that their driving histories are recorded. Event Data Recorders are the “black boxes” in automobiles that are installed in the vast majority of vehicles currently on the road. In the majority of states, the restrictions on what information can be retrieved from Event Data Recorders and used by police officers, advertising firms, and insurance companies remains a gray area. State laws governing Event Data Recorder technology greatly fluctuates by jurisdiction. If Event Data Recorder information falls into the wrong hands, the possession of the data …
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Michigan Telecommunications & Technology Law Review
The third-party doctrine is a long-standing tenant of Fourth Amendment law that allows law enforcement officers to utilize information that was released to a third party without the probable cause required for a traditional search warrant. This has allowed law enforcement agents to use confidential informants, undercover agents, and access bank records of suspected criminals. However, in a digital age where exponentially more information is shared with Internet Service Providers, e-mail hosts, and social media “friends,” the traditional thirdparty doctrine ideas allow law enforcement officers access to a cache of personal information and data with a standard below probable cause. …
Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold
Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold
William & Mary Law Review
No abstract provided.
The Snowden Effect: The Conflict In A Free Society, Who Values Privacy Versus Who Values Security?, Matthew C. Blake
The Snowden Effect: The Conflict In A Free Society, Who Values Privacy Versus Who Values Security?, Matthew C. Blake
Political Science Theses and Capstones
The Obama Administration has come under scrutiny by both the public and Congress, since former National Security Agency (NSA) contractor Edward Snowden made known the scope of government surveillance programs being utilized by the U.S. government to gather intelligence on domestic citizens. Snowden’s disclosures about the government’s surveillance practices to the mainstream media began in June 2013. I focus on how public opinion towards the government’s surveillance practices and an individual’s reasonable right to privacy has shifted after revelations made by Edward Snowden on the practices of the NSA. Individuals may show support for more government surveillance in the name …
Aclu V. Clapper: The Fourth Amendment In The Digital Age, Erin E. Connare
Aclu V. Clapper: The Fourth Amendment In The Digital Age, Erin E. Connare
Buffalo Law Review
No abstract provided.