How To Punish Your Least Favorite Online Influencer: Wellness Checks As Swatting And Their Disproportionate Impact On Marginalized Creators, 2023 Washington and Lee University School of Law
How To Punish Your Least Favorite Online Influencer: Wellness Checks As Swatting And Their Disproportionate Impact On Marginalized Creators, Tara Blackwell
Washington and Lee Journal of Civil Rights and Social Justice
Marginalized online creators are vulnerable to attacks using digital means of harassment including traditional swatting as well as the abuse of wellness checks that can act as swatting. Enabled by permissive Supreme Court 4th Amendment jurisprudence, malignant online actors have taken advantage of the ramshackle system of wellness checks that sends armed police officers with little training and even less compassion to the doors of individuals with reported mental health crises. This Note focuses on two polarizing influencers who have been subject to wellness check swatting after being very open about their mental health statuses online. This Note argues that …
Stay Out Of My Head: Neurodata, Privacy, And The First Amendment, 2023 Quinnipiac University School of Law
Stay Out Of My Head: Neurodata, Privacy, And The First Amendment, Wayne Unger
Washington and Lee Law Review
The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information …
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, 2023 Vanderbilt University Law School
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, 2023 University of Miami School of Law
The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim
University of Miami Inter-American Law Review
Genetic information is intimate and telling data warranting privacy in public and private realms. The privacy protections offered in the United States and Canada vastly differ when it comes to genetic privacy. Search and seizure law mirrors the privacy gap in the countries, as well as their treatment of DNA database information.
This note explores the foreshadowing of the creation of genetic privacy laws and their varying levels of protection based on the way private information was treated by state actors through search and seizure caselaw, the creation of legal precedent, and the treatment of intimate personal data in the …
Per Curiam Signals In The Supreme Court's Shadow Docket, 2023 University of Baltimore School of Law
Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar
Washington Law Review
Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.
Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …
The Tesla Meets The Fourth Amendment, 2023 Brigham Young University Law School
The Tesla Meets The Fourth Amendment, Adam M. Gershowitz
BYU Law Review
Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly extract …
Asking For It: Gendered Dimensions Of Surveillance Capitalism, 2023 Montgomery McCracken Walker & Rhoads
Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo
Emancipations: A Journal of Critical Social Analysis
Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.
Liberal feminists argued that in …
Privacy Lost: How The Montana Supreme Court Undercuts The Right Of Privacy, 2023 Seattle University School of Law
Privacy Lost: How The Montana Supreme Court Undercuts The Right Of Privacy, Kevin Frazier
Seattle Journal of Technology, Environmental & Innovation Law
In 1972, Montanans ratified a new constitution that included a “right of privacy.” The plain text of the provision fails to express the intent of the Framers who not only intended to afford Montanans a right, but also to impose a responsibility on the State to continuously and thoroughly examine State practices in light of evolving means of invading residents’ privacy. This intent has gone unrealized despite the fact that the intent of the Framers is clear, readily available, and the primary source state courts ought to use when interpreting the Constitution. This article delves into the transcripts of the …
The Ambiguity Of Probable Cause And Its Contentious Application By Police, 2023 College of the Holy Cross
The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce
College Honors Program
It is well documented how our country’s Criminal Justice System has a history of targeting people of color. A lot of this contention is derived from police officers’ behavior when interacting with individuals, yet officers only act upon the laws and legal policies that grant them authority, including probable cause. My thesis addresses the question, how does the fluid and ambiguous nature of probable cause leave the door open for officers to disproportionately target people of color in the United States? While focusing on vehicle, person, and property searches, I first define probable cause, building an understanding of exactly what …
The Fourth Amendment's Constitutional Home, 2023 William & Mary Law School
The Fourth Amendment's Constitutional Home, Gerald S. Dickinson
William & Mary Bill of Rights Journal
The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …
A New Test For The New Crime Exception, 2023 University of South Carolina - Columbia
A New Test For The New Crime Exception, Colin Miller
Utah Law Review
The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.
By doing so, courts have allowed the new crime exception to swallow two …
Aerial Trespass And The Fourth Amendment, 2023 University of Michigan Law School
Aerial Trespass And The Fourth Amendment, Randall F. Khalil
Michigan Law Review
Since 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into …
Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, 2023 Brooklyn Law School
Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, Michael G. Brewster
Brooklyn Law Review
Police misconduct is a persistent issue in the United States that undermines public trust in law enforcement and the criminal justice system as a whole. The video of George Floyd’s arrest and murder played an irreplaceable role in bringing attention to the case and sparking nationwide discussions about the state of policing in America. The video, showing former Minneapolis police officer Derek Chauvin kneeling on Mr. Floyd’s neck for several minutes, also helped convict Mr. Chauvin of murder at trial. Recording police activity is an important means of holding officers accountable for their actions and protecting citizens from abuse of …
Giving The Fourth Amendment Meaning: Creating An Adversarial Warrant Proceeding To Protect From Unreasonable Searches And Seizures, 2023 University of Michigan Law School
Giving The Fourth Amendment Meaning: Creating An Adversarial Warrant Proceeding To Protect From Unreasonable Searches And Seizures, Ben Mordechai-Strongin
University of Michigan Journal of Law Reform
For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or …
Telegraph, Telephone And The Internet: The Making Of The Symbiotic Model Of Surveillance States, 2023 University of Washington School of Law
Telegraph, Telephone And The Internet: The Making Of The Symbiotic Model Of Surveillance States, Dongsheng Zang
Articles
In the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the "Big Brother" metaphor "fails to capture the most important dimension of the database problem." In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: "a new form of governance that features the collection, collation, and analysis of information about populations both in the …
Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, 2023 Bridgewater College
Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones
Honors Projects
DNA dragnets have attracted both public and scholarly criticisms that have yet to be resolved by the Courts. This review will introduce a modern understanding of DNA analysis, a complete introduction to past and present Fourth and Fourteenth Amendment jurisprudence, and existing suggestions concerning similar issues in legal scholarship. Considering these contexts, this review concludes that a focus on privacy and property at once, with a particular sensitivity to the inseverable relationship between the two interests, is Constitutionally consistent with precedent and the most workable means of answering the question at hand.
Search And Seizure Budgets, 2023 University of California, Irvine School of Law
Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson
UC Irvine Law Review
This Article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …
Pocket Police: The Plain Feel Doctrine Thirty Years Later, 2023 University of Michigan Law School
Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker
Michigan Law Review
The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …
Gone Fishing: Casting A Wide Net Using Geofence Warrants, 2023 University of Washington School of Law
Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi
Washington Law Review
Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …
When Taint Teams Go Awry: Laundering Unconstitutional Violations Of The Fourth Amendment, 2023 University of Minnesota
When Taint Teams Go Awry: Laundering Unconstitutional Violations Of The Fourth Amendment, Edward S. Adams, William C. Price Jr.
Arkansas Law Review
In this Article, we examine the legal landscape in which taint teams operate, why taint teams are constitutionally problematic, and propose a solution to protect the attorney-client privilege. In Part I, we will first describe what taint teams are supposed to protect—attorney-client privilege. Next, we review how a taint team gets its documents to review, namely the doctrine surrounding (secret) search warrants. Part I ends with a non exhaustive summary of remedies available when attorney-client privilege is violated during searches. In Part II, we explain the current policies and practices surrounding taint teams, including sources of procedure for taint teams …