Privacy Law Commons^™

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

Drones: Updating The Fourth Amendment And The Technological Trespass Doctrine, S. Alex Spelman

Nevada Law Journal

No abstract provided.

Pot In My Backyard: Curtilage Concept Endorsed By The Queens Supreme Court To Suppress Physical Evidence Of Marijuana, Laura J. Mulholland

Touro Law Review

No abstract provided.

Surveillance As Loss Of Obscurity, Woodrow Hartzog, Evan Selinger

Washington and Lee Law Review

No abstract provided.

State Labs Of Federalism And Law Enforcement "Drone" Use, Chris Jenks

Washington and Lee Law Review

No abstract provided.

I Spy: The New Self-Cybersurveillance And The "Internet Of Things", Steven I. Friedland

Washington and Lee Law Review

Prior to the digital age, surveillance generally meant a government agent or private investigator engaged in a stakeout or observation detail that involved physical work, expense, and time. The digital age changed surveillance fundamentally. Today, we not only generate mountains of data for others, we also effectively surveil ourselves through digitally-connected, multifunctional smart devices, collectively described as the “Internet of Things.”

Cybersurveillance accessed by the government, even when started as self-surveillance, raises complex and uncertain legal issues, especially when related to the Constitution. In United States v. Kyllo, the Supreme Court was reticent to allow government agents to use …

Regulating Drones Under The First And Fourth Amendments, Marc Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

Faculty Articles

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

Minding Your Meds: Balancing The Needs For Patient Privacy And Law Enforcement In Prescription Drug Monitoring Programs, Devon T. Unger

West Virginia Law Review

No abstract provided.

Privacy In Social Media: To Tweet Or Not To Tweet?, Tara M. Breslawski

Touro Law Review

No abstract provided.

Facebook Is Not Your Friend: Protecting A Private Employee's Expectation Of Privacy In Social Networking Content In The Twenty-First Century Workplace, Cara Magatelli

The Journal of Business, Entrepreneurship & the Law

This Comment explores the implications SNS postings have on private employers concerning the off-duty, non-work related conduct of their employees. This argument recognizes that an employee is entitled to engage in whatever legal off-duty conduct he chooses, so long as the behavior does not damage his employer's legitimate business interests. An employer should not be able to use information gleaned from an employee's SNS postings, unrelated to an employer's business interests, to punish an employee for her choices outside the work place. Disciplining or terminating an employee for his off-duty lifestyle choices permits the morals and standards of the employer …

Reforming The Grand Jury To Protect Privacy In Third Party Records, Andrew Taslitz, Stephen E. Henderson

Faculty Articles

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

But LEATPR exempts from its requirements access to records via a …

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Faculty Articles

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen Henderson

Other Faculty Publications

An invited essay for Constitution Day, also available here: http://blogs.law.widener.edu/constitution2013/2013-essay-authors/stephen-henderson/It addresses the national security surveillance disclosed by Edward Snowden and others, and asks whether a fundamental shift would be prudent in the era of Big Data.

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson

Faculty Books and Book Chapters

Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

Law Faculty Scholarship

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Faculty Articles

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Faculty Articles

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …

The Physics Of Fourth Amendment Privacy Rights, Omar Saleem

Journal Publications

Einstein's esteem for theoretical physics and Dostoyevsky serve as a conduit for this article's discussion about the similarities between the evolution of theoretical physics and the criminal process related to Fourth Amendment privacy rights. Part I of this Article demonstrates that law and science share traits of rationality, a quest for universality, and theoretical evolution. Part II traces the parallel paths of Fourth Amendment privacy rights and theoretical physics. Part III illustrates the radical alterations in theoretical physics created by Einstein's relativity discoveries and the radical alterations in Fourth Amendment privacy rights created by the U.S. Supreme Court's decision in …

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson

Other Faculty Publications

For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable expectation …

Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson

Faculty Articles

We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to …

Transaction Surveillance By The Government, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …