Privacy Law Commons^™

Preservation Requests And The Fourth Amendment, Armin Tadayon

Seattle University Law Review

Every day, Facebook, Twitter, Google, Amazon, ridesharing companies, and numerous other service providers copy users’ account information upon receiving a preservation request from the government. These requests are authorized under a relatively obscure subsection of the Stored Communications Act (SCA). The SCA is the federal statute that governs the disclosure of communications stored by third party service providers. Section 2703(f) of this statute authorizes the use of “f” or “preservation” letters, which enable the government to request that a service provider “take all necessary steps to preserve records and other evidence in its possession” while investigators seek valid legal process. …

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Articles in Law Reviews & Other Academic 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 …

Cell Phone Searches After Riley: Establishing Probable Cause And Applying Search Warrant Exceptions, Erica L. Danielsen

Pace Law Review

Part I of this note discusses the Fourth Amendment’s protection against unreasonable search and seizures and its probable cause requirement. The Fourth Amendment’s text remains the same since its enactment. However, interpretation of the Fourth Amendment continues to evolve in order to stay current with society. Interpretation of the Fourth Amendment also varies based on state constitutional law since states can provide its citizens with greater protection than the United States Constitution. This is why the United States Supreme Court, federal district courts, and state courts have all undergone thorough Fourth Amendment analyses when applying the true meaning of the …

Riley V. California And The Beginning Of The End For The Third-Party Search Doctrine, David A. Harris

Articles

In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination of …

The Un-Territoriality Of Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache

Articles in Law Reviews & Other Academic Journals

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …

Privacy's Problem And The Law Of Criminal Procedure, William J. Stuntz

Michigan Law Review

Part I of this article addresses the connection between privacy-based limits on police authority and substantive limits on government power as a general matter. Part II briefly addresses the effects of that connection on Fourth and Fifth Amendment law, both past and present. Part ID suggests that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force. The upshot is that criminal procedure would be better off with less attention to privacy, at least as privacy is defined in …

Response: The Problems With Privacy's Problem, Louis Michael Seidman

Michigan Law Review

A Response to William J. Stuntz's "Privacy's Problem and the Law of Criminal Procedure"

Reply, William J. Stuntz

Michigan Law Review

A Reply to Louis Michael Seidman's Response

Constitutional Posture Of Canine Sniffs, Lina Shahin

Touro Law Review

No abstract provided.

Political Surveillance And The Fourth Amendment, Alan Meisel

Articles

The United States District Court case has left the scope of the warrant protection of the fourth amendment considerably clearer and broader. The door left ajar in Katz has been firmly fastened shut by the Court leaving only the traditional exceptions to the warrant requirement, which are based upon practical necessity, and the still unconfronted question of the power of the executive to conduct warrantless surveillances of foreign agents in national security cases." It is also clear that courts are no less competent to evaluate the appropriateness of a search and seizure in an internal security case than in a …