Privacy Law Commons^™

Remarks, Andrea Dennis

University of Michigan Journal of Law Reform

Over the course of one week, the Michigan Journal of Law Reform presented its annual Symposium, this year titled Reimagining Police Surveillance: Protecting Activism and Ending Technologies of Oppression. During this week, the Journal explored complicated questions surrounding the expansion of police surveillance technologies, including how police and federal agencies utilize their extensive resources to identify and surveil public protest, the ways in which technology employed by police is often flawed and disparately impacts people of color, and potential reforms of police surveillance technology. Before delving into these complicated questions, I presented remarks on the history of police surveillance …

“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee

University of Michigan Journal of Law Reform

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter …

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions …

Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley

Michigan Law Review First Impressions

Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy

Michigan Law Review

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

Articles

Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

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"

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 …

Reply, William J. Stuntz

Michigan Law Review

A Reply to Louis Michael Seidman's Response

Threshold Requirements For The Fbi Under Exemption 7 Of The Freedom Of Information Act, Richard A. Kaba

Michigan Law Review

This Note examines Exemption 7 of the FOIA as it relates to FBP0 information and seeks to determine the appropriate rule for the first prong of the Abramson test. Part I of this Note examines Exemption 7 in the 1966, 1974, and 1986 FOIAs, the judicial opinions interpreting this exemption, and the legislative histories of the 1966, 1974, and 1986 FOIAs as they relate to Exemption 7. Part II compares the per se and threshold tests in view of their practical effects and concludes that neither test is clearly superior. Part III proposes adoption of a per se rule with …

Public Employees Or Private Citizens: The Off-Duty Sexual Activities Of Police Officers And The Constitutional Right Of Privacy, Michael A. Woronoff

University of Michigan Journal of Law Reform

This Note proposes a framework for dealing with problems in this area in a manner which best balances the competing interests involved. It argues that, while there is no explicit constitutional guarantee of privacy, the state is not free to regulate all aspects of a police officer's otherwise legal, off-duty, sexual activity. Part I of the Note examines several possible sources of a constitutional right of privacy. It concludes that, although many of the courts which invalidate state regulation of police officers' off-duty sexual activity do so on the basis of some constitutional right of privacy, any implied fundamental right …

Police Use Of Cctv Surveillance: Constitutional Implications And Proposed Regulations, Gary C. Robb

University of Michigan Journal of Law Reform

This article evaluates the constitutionality of CCTV "searches." Part I discusses the present uses being made of closed circuit technology and evaluates the merits of the CCTV surveillance system. The critical policy trade-off is the system's effectiveness in combatting crime against the resulting loss of privacy to individual citizens.

Part II considers the constitutional implications of CCTV use in terms of three major doctrines: the Fourth Amendment prohibition against "unreasonable searches and seizures"; the constitutional right of privacy; and the First Amendment guarantees of free speech and association. This part briefly summarizes the state of the law concerning these constitutional …

Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review

Michigan Law Review

This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …

The Life And Times Of Boyd V. United States (1886-1976), Michigan Law Review

Michigan Law Review

In Boyd v. United States, the Supreme Court held that the fourth and fifth amendments create a zone of privacy encompassing an individual's person and property. The government, according to Boyd, cannot enter this zone, either by compelling an individual to testify against himself or by subpoenaing or seizing his books and papers for use as evidence against him in a criminal or quasi-criminal proceeding. The Court found an "intimate relation" between the two amendments such that the search and seizure of books and papers may be "unreasonable" even if conducted pursuant to a court order.

Over time, …

Conjugal Visitation Rights And The Appropriate Standard Of Judicial Review For Prison Regulations, Michigan Law Review

Michigan Law Review

Conjugal visitation rights allow prison inmates and spouses to visit privately and have sexual relations. A number of countries, particularly in Latin America, permit conjugal visits. Although in the United States only Mississippi and California currently permit conjugal visitation, the experience of these two states shows that such programs are workable. Conjugal visitation has met with varied reaction in the literature, but persuasive arguments have been made that it would offer potential psychological benefits to the prisoner, reduce prison homosexuality, and allow the inmate to preserve his or her marital ties. Nevertheless, the reaction of penal administrators in this country …

Protection Of Privacy Of Computerized Records In The National Crime Information Center, Stuart R. Hemphill

University of Michigan Journal of Law Reform

The purpose of this article is to describe the social benefits and costs of the NCIC and to indicate the need for a program of operational controls to temper the system's impact on the balance between individual privacy and law enforcement needs. Various approaches which could be incorporated into a program of safeguards are introduced and briefly analyzed. Finally, the article discusses several overall design issues which should be considered in the construction of an adequate program of safeguards. Particular emphasis is placed on the NCCH file since it is the major source of the tensions underlying the issues addressed.

The Concept Of Privacy And The Fourth Amendment, Steven C. Douse

University of Michigan Journal of Law Reform

This Article attempts at a minimum to offer a common background and frame of reference for defining and comparing myriad facets of the law. If successful, they furnish a model for the integration of these many facets. This inquiry begins with an examination of the proposition that the essence of the fourth amendment is protection of a right of privacy. The concept of privacy is then defined and elaborated, both without and within the constitutional context. These conclusions are further extended in an exploration of mechanisms for defining the invasions and protection of fourth amendment privacy.

Westin: Privacy And Freedom, Stanley K. Laughlin Jr.

Michigan Law Review

A Review of Privacy and Freedom by Alan F. Westin

Searches And Seizures - Right Of An Individual To Force The Return Of Goods Seized And Held By Police Officials, David Dow

Michigan Law Review

One of the most vexing problems which confronts a police officer investigating a crime is to determine how far he may go in seizing goods from the possession either of the person accused of the crime or of some other person. To him it is important not only as it may affect law suits against him for invasion of possessory rights, but also to make the goods thus seized admissible in evidence. To the individual this problem is important in securing full protection against unwarranted invasions of his possession. It is elementary in our legal system that the possessory rights …

The Criminal's Right Of Privacy

Michigan Law Review

The dissent of Mr. Justice Brandeis in the famed wire tapping case has been of especial interest to those who are acquainted with his article in the Harvard Law Review in 1890 on "The Right of Privacy." The law has witnessed few more fascinating developments than the engrafting of this latter concept into the formula of justice, few more conspicuous examples of creative juristic effort. Concerning it Dean Pound has said: "What may almost be called the classical example (of creative activity) is the paper on the Right of Privacy in which Mr. Justice Brandeis, then at the bar, was …

Telegraph, Telephone And Wireless-Tapping

Michigan Law Review

A recent Federal case, Olmstead v. United States, suggests an interesting problem. Evidence obtained by Federal authorities, who tapped private telephone wires, was admitted in a criminal prosecution. It seems to be the general rule that fraudulently, wrongfully, or illegally procured evidence is admissible, if otherwise admissible. And certainly the courts have required telegraph companies to disclose messages to aid criminal prosecutions. Telegraph operators have been compelled to testify. And even where a state statute forbade disclosure of the message by the company, a subpoena duces tecum has compelled the production of a telegram to aid the courts. Testimony …