Privacy
The Abortion Interoperability Trap
There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states. Lawmakers and providers must act now to shield politicized medical records by addressing this “interoperability trap.”
Unmanned Stakeouts: Pole-Camera Surveillance and Privacy After the Tuggle Cert Denial
The Supreme Court recently declined to review Tuggle, a Seventh Circuit opinion upholding warrantless, prolonged pole-camera surveillance of a home. This Essay argues that the Court missed an opportunity to update its Fourth Amendment search doctrine. This Essay also explores alternative opportunities—other than federal litigation—for safeguarding privacy rights.
A Relational Theory of Data Governance
Data practices of powerful technology companies are aimed primarily at deriving population-level, relational insights, not individual insights specific to a data subject. To apprehend and adjudicate among the supra-individual legal interests that result from data relations necessitates far more public and collective (i.e., democratic) forms of governing data production.
Agonistic Privacy & Equitable Democracy
Privacy protections play a vital role in disrupting surveillance-caused subordination and should be at the forefront of efforts to reform digital and physical public space. Robust privacy protections empower marginalized groups to safely participate, while increasing heterogeneity within the public sphere and enabling the healthy contestation of ideas.
Beyond the Public Square: Imagining Digital Democracy
To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic cliché of the unregulated public square and commit to the hard work of designing for democracy.
Platform Realism, Informational Inequality, and Section 230 Reform
Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.
Sexual Privacy
New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy that relies on laws and markets.
Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches
This Essay traces the historical evolution of the border search exception to the Fourth Amendment to argue that CBP and ICE are currently operating outside constitutional constraints and proposes a tiered approach, restricted in scope and requiring increasing levels of protections the more invasive the search becomes.
Data Rights and Data Wrongs: Civil Litigation and the New Privacy Norms
This Essay argues that that civil litigation between private parties in the data privacy space is shaping important privacy norms. Because no comprehensive data privacy law exists in the United States, litigants must rely on doctrines that are ill suited to the legal questions raised by the mass collection of personal data.
Fourth Amendment Reasonableness After Carpenter
In Carpenter v. United States, the Supreme Court held that a warrant is required when the government collects certain categories of third-party data. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic surveillance, courts should instead consider whether such surveillance is reasonable.
Privacy and Security Across Borders
This Essay analyzes the impetus and results of recent initiatives by the United States, European Union, and Australia to regulate law enforcement access to data, highlights their promise and their limits, and offers a way forward that protects speech, privacy, and other rights in the process.
GINA, Big Data, and the Future of Employee Privacy
Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employee privacy.
Government Hacking
The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have sharply divide.
Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches
While data breaches continue to roil the headlines, regulation and legislation are unlikely to provide a timely solution to protect consumers. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transactions implicate fiduciary-like relationships of trust.
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
The Private Search Doctrine After Jones
In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.
Apple and the American Revolution: Remembering Why We Have the fourth Amendment
On February 16, 2016, the U.S. Department of Justice (DOJ)obtained an unprecedented court order in the San Bernardino shooting case thatwould have forced Apple to design and deliver to the DOJ software capable ofdestroying the encryption and passcode protections built into the iPhone. The DOJasserted that this order was simply the extension of a warrant obtained by theFederal Bureau of Investigation (FBI) to search the shooter’s iPhone, which hadbeen locked with a standard passcode.
Predicting Utah v. Streiff’s Civil Rights Impact
The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply. When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures. Unlike most discussions of Strieff, which focus on its implications for criminal defendants, this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.