Fourth Amendment Commons^™

Anonymity, Faceprints, And The Constitution, Kimberly L. Wehle

All Faculty Scholarship

Part I defines anonymity and explains that respect for the capacity to remain physically and psychologically unknown to the government traces back to the Founding. With the advent and expansion of new technologies such as facial recognition technology (“FRT”), the ability to remain anonymous has eroded, leading to a litany of possible harms.

Part II reviews the existing Fourth and First Amendment doctrine that is available to stave off ubiquitous government surveillance and identifies anonymity as a constitutional value that warrants more explicit doctrinal protection. Although the Fourth Amendment has been construed to excise surveillance of public and third-party information …

Preempting The Police, David Jaros

All Faculty Scholarship

Fighting crime requires that we vest police with extensive discretion so that they can protect the public. Unfortunately, the nature of police work makes it difficult to ensure that law enforcement authority is not abused. This challenge is exacerbated by the fact that a great deal of questionable police activity exists in the legal shadows — unregulated practices that do not violate defined legal limits because they have generally eluded both judicial and legislative scrutiny. Local law enforcement strategies, like the maintenance of unauthorized police DNA databases and the routine practice of initiating casual street encounters, threaten fundamental notions of …

Maryland's Social Networking Law: No "Friend" To Employers And Employees, Alexander Borman

Journal of Business & Technology Law

No abstract provided.

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 …

Police Officer's Safety: An Exception Within An Exception Of The Fourth Amendment, Jeffrey T. Wennar

Criminal Law Practitioner

No abstract provided.

The Right To Digital Privacy: Advancing The Jeffersonian Vision Of Adaptive Change, Kerry Moller

CMC Senior Theses

The relationship between privacy, technology, and law is complex. Thomas Jefferson’s prescient nineteenth century observation that laws and institutions must keep pace with the times offers a vision for change. Statutory law and court precedents help to define our right to privacy, however, the development of new technologies has complicated the application of old precedents and statutes. Third party organizations, such as Google, facilitate new methods of communication, and the government can often collect the information that third parties receive with a subpoena or court order, rather than a Fourth Amendment-mandated warrant. Privacy promotes fundamental democratic freedoms, however, under current …

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

Cause To Believe What? The Importance Of Defining A Search's Object—Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Oklahoma Law Review

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on …

Third Party Records Protection On The Model Of Heightened Scrutiny, Marc J. Blitz

Oklahoma Law Review

No abstract provided.

Light In The Darkness: How The Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald

Oklahoma Law Review

No abstract provided.

The Aba Standards For Criminal Justice: Law Enforcement Access To Third Party Records: Critical Perspectives From A Technology-Centered Approach To Quantitative Privacy, David C. Gray

Oklahoma Law Review

No abstract provided.

Ubiquitous Privacy, Thomas P. Crocker

Oklahoma Law Review

No abstract provided.

Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, Andrew G. Ferguson

Oklahoma Law Review

Before moving on to my contribution about how the growing reliance on big data analytics may necessitate a slight modification to the ABA Standards on Law Enforcement Access to Third Party Records (LEATPR Standards), I would like first to pay a few compliments to the drafters of the LEATPR Standards for producing such a systematic, thoughtful, and elegant framework for considering Fourth Amendment freedoms. As anyone who writes about or teaches the Fourth Amendment knows, the doctrine remains a theoretical muddle. Yet, despite a minefield of conflicting precedent, the drafters of the LEATPR Standards have managed to construct a defensible …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The Attrition Of Rights Under Parole, Tonja Jacobi, Song Richardson, Gregory Barr

Faculty Articles

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and …

Comments: Droning On About The Fourth Amendment: Adopting A Reasonable Fourth Amendment Jurisprudence To Prevent Unreasonable Searches By Unmanned Aircraft Systems, Joel Celso

University of Baltimore Law Review

No abstract provided.

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

Rights Of Passage: On Doors, Technology, And The Fourth Amendment, Irus Braverman

Journal Articles

The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, …