Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication
- Publication Type
Articles 1 - 7 of 7
Full-Text Articles in Privacy Law
The Sacred Fourth Amendment Text, Christopher Slobogin
The Sacred Fourth Amendment Text, Christopher Slobogin
Michigan Law Review Online
The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
Michigan Law Review Online
Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …
Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker
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
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 …
Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby
Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby
Michigan Law Review
Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …
Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley
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 Criminal's Right Of Privacy
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 …