Privacy Law Commons^™

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 …

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 …

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. …

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

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 …

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, …

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, …

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 …

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 …

Search Of Automobile Without Warrant--When Reasonable

Michigan Law Review

The enforcement of the National Prohibition Act has been responsible for raising the search and seizure question to a new height of importance. By Section 26 of that act, any officer discovering any person in the transportation of intoxicating liquors is to seize all such liquors being transported contrary to law. Obviously to secure a search warrant is impossible in the very nature of things the automobile, adapted to speed, is gone long before a warrant could be secured. And the employment of the automobile in the transportation of liquor is carried to such an extent that search and seizure …