Fourth Amendment Commons^™

Reasonable, Legal, Voluntary? Grants Pass Decision Sparks Need For A Revised Fourth Amendment Search Analysis In The Context Of Homelessness, Hali R. Woods

Catholic University Law Review

On June 28, 2024 the Supreme Court decided City of Grants Pass, Oregon v. Johnson.  The case addressed whether the enforcement of city ordinances regulating camping on public property against individuals including respondents, unhoused individuals residing in the city of Grants Pass, constituted cruel and unusual punishment under the Eighth Amendment.  The Court upheld enforcement of the ordinances and since then approximately 150 cities across the United States have passed similar ordinances or strengthened existing similar laws.  This comment evaluates how Grants Pass is an Eighth Amendment case with Fourth Amendment consequences which sparks a need for a revised …

Dude, Where’S My Data? A Legislative Band-Aid For Data Brokers’ Bullet Hole In Consumer Privacy Protection, Emily Bushman

Catholic University Law Review

The development and proliferation of the Internet, GPS, cell phones, social media, and the associated data that support these now ubiquitous technologies have created a new ecosystem of information making up a person’s digital identity. Our digital footprints have traditionally been subject to different levels of privacy protection depending upon the kind of data at issue. Over time, court decisions have revealed tensions and a lack of consistency on the question of how the protections guaranteed by the Fourth Amendment apply to an individual’s digital footprint and their reasonable expectations of privacy over it. This Comment will examine the gaps …

Protecting The Innocent: How To Prevent The Consequences Of Misidentification And Doxing By Volunteers Helping With Open Source Investigations, Leigh M. Dannhauser

Catholic University Journal of Law and Technology

Individuals performing open source investigations can misidentify alleged perpetrators and dox innocent parties online, which can subsequently lead to threats and harassment against innocent parties and their loved ones. For example, threats were made against Sunil Tripathi’s family after he was wrongly identified as one of the Boston Marathon bombers and doxed on Reddit and Twitter. In 2020, the Berkeley Protocol on Digital Open Source Investigations was published as a guide, and it includes a set of principles to govern open source investigations. However, the Berkeley Protocol is limited to open source investigations performed by those working for organizations. It …

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.

Police Perceptions, Knowledge, And Performance: Traffic Stops And The Use Of K-9 Units, Christopher D. Totten, Gang Lee, Daniel Ozment

Catholic University Law Review

This empirical (survey) study of law enforcement officers aims to shed light on police conduct and knowledge concerning traffic stops, vehicle searches and the use of canine (K-9) units. This context is particularly relevant in light of a recent United States Supreme Court case in this area, Rodriguez v. United States, which held that when the mission of a routine traffic stop has been or reasonably should have been completed (i.e., the officer has issued a traffic ticket or a warning after having checked license, registration, insurance, and/ or warrants), the officer may not in general detain the vehicle …

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …

Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl

Catholic University Law Review

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the United States must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future.

This Article identifies four technological trends that could significantly impact the way the United States conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase …

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

From Storefront To Dashboard: The Use Of The Americans With Disabilities Act To Govern Websites, Kelby S. Carlson

Catholic University Law Review

The question of the effects of technological change on the interpretation of statutes is a complicated one. Particularly for statutes that govern a broad range of issues, the advent of new technology can precipitate re-examination of the rationale behind, and nature of, the relevant law. The Americans with Disabilities Act was enacted, in part, to give Americans with disabilities greater access to public space, allowing them to enjoy the advantages such access offers on an equal footing with the able-bodied. The adoption of digital technology across society and, in particular, the widespread ubiquity of the internet now raise questions about …

Is Your Smartphone Conversation Private? The Stingray Device’S Impact On Privacy In States, Katherine M. Sullivan

Catholic University Law Review

“Where are you” is a common question to receive on your cellphone, but it is up to you whether or not to respond with an answer. No longer does this question need to be asked due to advancements in surveillance technology. When pinpointing a criminal suspect, the question can be answered by local and state agencies, without the person of interest knowing, by using a StingRay device. The main question to be asked is does the conduct of locating a criminal suspect’s exact location without a warrant, violate an individual’s Fourth Amendment Constitutional right to be free from unreasonable searches. …

Privacy Vs. Protection: Why Tracking Mobile-Device Location Data Without A Warrant Requires A Fourth Amendment Exception, Andrew Stover

Catholic University Journal of Law and Technology

No abstract provided.

International Comity And The Non-State Actor, Microsoft: Why Law Enforcement Access To Data Stored Abroad Act (Leads Act) Promotes International Comity, Sabah Siddiqui

Catholic University Journal of Law and Technology

Currently large email service providers, such as Google, Microsoft and Yahoo are refusing to comply with warrants issued under the Secured Communications Act (“SCA”) because in many instances, the requested information may be stored in servers located abroad. In the dismissed Supreme Court case, In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corporation, the Supreme Court should have addressed whether an internet service provider must comply with a warrant issued under the SCA when the requested information is stored in a foreign country and whether enforcement of these warrants would be an impermissible …

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

Is Wifi Worth It: The Hidden Dangers Of Public Wifi, Ellie Shahin

Catholic University Journal of Law and Technology

No abstract provided.

Autonomous Cars: Navigating The Patchwork Of Data Privacy Laws That Could Impact The Industry, Anthony Jones

Catholic University Journal of Law and Technology

No abstract provided.

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

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

Catholic University Journal of Law and Technology

No abstract provided.

Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport

Catholic University Journal of Law and Technology

No abstract provided.

Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka

Catholic University Law Review

All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous …

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and …

“The Lady Of The House” Vs. A Man With A Gun: Applying Kyllo To Gun-Scanning Technology, Sean K. Driscoll

Catholic University Law Review

No abstract provided.

Police Trespass And The Fourth Amendment: A Wall In Need Of Mending, Clifford S. Fishman

Scholarly Articles

Part I of this article provides an overview of basic Fourth Amendment principles. Part II analyzes the Oliver and Ciraolo cases which define and distinguish residential "curtilage," protected by the Fourth Amendment, and "open fields," which the Fourth Amendment does not protect. Part III reviews the Dow decision's discussion of whether an industrial facility, like a residence, might have constitutionally protected curtilage. Part IV focuses on the Dunn decision, which dramatizes the curtilage-open field dichotomy while at the same time blurring the line between the two. Finally, part V shows how these decisions may have invalidated the "commercial curtilage" concept …

Technologically Enhanced Visual Surveillance And The Fourth Amendment: Sophistication, Availability And The Expectation Of Privacy, Clifford S. Fishman

Scholarly Articles

Since 1983, however, seven Supreme Court decisions have focused at least in part upon application of the Fourth Amendment to technological enhancement of, or technological substitution for, visual surveillance: United States v. Dunn and Texas v. Brown (artificial illumination); United States v. Knotts and United States v. Karo (electronic tracking devices); California v. Ciraolo9 and Florida v. Riley (aerial surveillance); and Dow Chemical Co. v. United States (image-magnifying aerial photography). Reaction to many of these decisions has been highly critical.

In six of the seven cases, investigators refrained from intruding physically into a location protected by the Fourth Amendment. The …

Interception Of Communications In Exigent Circumstances: The Fourth Amendment, Federal Legislation, And The United States Department Of Justice, Clifford S. Fishman

Scholarly Articles

Part I briefly reviews basic Fourth Amendment case law regulating searches and seizures, summarizes the exigent circumstances doctrine, and discusses the applicability of that doctrine to electronic surveillance of communications. Part II outlines Title III's requirements for a "standard" (non-emergency, non-roving) interception order, including what the application and order must contain, and how such an order must be executed. Part III studies the emergency surveillance provision of Title III and reviews Justice Department policies and practices in implementing that provision. Part IV analyzes the new roving intercept provision, discusses its constitutionality, and looks at some practical problems that may arise …

Electronic Tracking Devices And The Fourth Amendment: Knotts, Karo, And The Questions Still Unanswered, Clifford S. Fishman

Scholarly Articles

This article will examine the Knotts and Karo decisions, analyze the unanswered questions relating to the use of electronic tracking devices, and outline legislation that might best resolve those questions and strike a proper balance between the often conflicting values of individual privacy and effective law enforcement.

Pen Registers And Privacy: Risks, Expectations, And The Nullification Of Congressional Intent, Clifford S. Fishman

Scholarly Articles

In United States v. New York Telephone Co. the Supreme Court first ruled that an ordinary search warrant sufficed to authorize law enforcement use of a pen register. Additionally, the Court ruled that a federal district judge possessed the authority to include within the search warrant an order compelling a telephone company to assist the government by installing a pen register on the targeted telephone.

In Smith v. Maryland, the Court considered the legality of pen register surveillance conducted by a telephone company pursuant to an informal police request, that is, without a warrant or other court order. In holding …

The Minimization Requirement In Electronic Surveillance: Title Iii, The Fourth Amendment, And The Dread Scott Decision, Clifford S. Fishman

Scholarly Articles

This article addresses the problems raised by the Title III minimization requirement with particular emphasis on the Supreme Court's decision in Scott. Section I outlines the provisions of Title III that govern the issuance of eavesdropping warrants and the use of derivative evidence. Section II discusses the minimization provision and the definitional problems it presents. Section III analyzes judicial treatment of the minimization provision in light of Scott, and factors that have been held to affect a monitoring agent's ability to minimize interceptions. Section IV discusses judicial approaches to minimization litigation with respect to the problems of standing, guidelines for …