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Date: April 29, 2024 Mon
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Results for fourth amendment
16 results foundAuthor: Smith, Alison M. Title: Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations Summary: As technology continues to advance, what was once thought novel, even a luxury, quickly becomes commonplace, even a necessity. Global Positioning System (GPS) technology is one such example. Generally, GPS is a satellite-based technology that discloses the location of a given object. This technology is used in automobiles and cell phones to provide individual drivers with directional assistance. Just as individuals are finding increasing applications for GPS technology, state and federal governments are as well. State and federal law enforcement use various forms of GPS technology to obtain evidence in criminal investigations. For example, federal prosecutors have used information from cellular phone service providers that allows real-time tracking of the locations of customers’ cellular phones. Title III of the Omnibus Crime Control and Safe Streets Act of 1958 (P.L. 90-351) regulates the interception of wire, oral, and electronic communications. As such, it does not regulate the use of GPS technology affixed to vehicles and is beyond the scope of this report. The increased reliance on GPS technology raises important societal and legal considerations. Some contend that law enforcement’s use of such technology to track motor vehicles’ movements provides for a safer society. Conversely, others have voiced concerns that GPS technology could be used to reveal information inherently private. Defendants on both the state and federal levels are raising Fourth Amendment constitutional challenges, asking the courts to require law enforcement to first obtain a warrant before using GPS technology. Subject to a few exceptions, the Fourth Amendment of the U.S. Constitution requires law enforcement to obtain a warrant before conducting a search or making a seizure. Courts continue to grapple with the specific issue of whether law enforcement’s use of GPS technology constitutes a search or seizure, as well as the broader question of how the Constitution should address advancing technology in general. The Supreme Court has not directly addressed the issue of whether law enforcement’s use of GPS technology in connection with motor vehicles falls within the Fourth Amendment’s purview. Lower federal courts have relied on Supreme Court precedent to arrive at arguably varying conclusions. For example, several district and circuit courts of appeals have concluded that law enforcement’s current use of GPS technology does not constitute a search, and is thus permissible, under the Constitution. To date, while the U.S. Supreme Court has not provided a definitive answer regarding law enforcement’s use of GPS technology, state legislatures and courts have approached the issue in various ways. Some states have enacted laws requiring law enforcement to obtain a warrant before using GPS technology. Some state courts have resolved the question under their own constitutions. Although they have reached somewhat differing conclusions, other state courts have relied on Supreme Court precedent, such as United States v. Knotts, 460 U.S. 276 (1983), to derive an answer. This report discusses the basics of GPS technology, society’s reliance on it, and some of the related legal and privacy implications. In addition, the report examines legislative and judicial responses on both federal and state levels. Details: Washington, DC: Congressional Research Service, 2011. 15p. Source: Internet Resource: CRS Report R41663: Accessed May 11, 2011 at: http://www.fas.org/sgp/crs/misc/R41663.pdf Year: 2011 Country: United States URL: http://www.fas.org/sgp/crs/misc/R41663.pdf Shelf Number: 121707 Keywords: Criminal InvestigationFourth AmendmentGlobal Positioning DevicesSearch and SeizureTechnology |
Author: Doyle, Charles Title: Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court Summary: Authorities may enter and search a home without a warrant if they have probable cause and reason to believe that evidence is being destroyed within the home. So declared the United States Supreme Court in an 8-1 decision, Kentucky v. King, 131 S.Ct. 1849 (2011)(No. 09-1272). The Kentucky Supreme Court had overturned King’s conviction for marijuana possession and drug dealing, because the evidence upon which it was based had been secured following a warrantless search which failed to conform with that court’s restrictions under its “police-created exigencies” doctrine. The Fourth Amendment usually permits authorities to search a home only if they have both probable cause and a warrant. The warrant requirement may be excused in the presence of exigent circumstances, for instance, when it appears the occupants are attempting to flee or to destroy evidence. Leery lest authorities create exigent circumstances to avoid the warrant requirement, some state and lower federal courts had adopted one form or another of a police-created exigencies doctrine. The Court rejected each of these and endorsed searches conducted under the exigent circumstance exception, unless authorities had created the exigency by threatening to, or engaging in, activities which themselves violated the Fourth Amendment. In order to reach the question of limitations on police-created exigencies, the Court assumed the existence of exigent circumstances in King. The concerns from which the police-created exigencies doctrine emerged may now give rise to more stringent standards for what qualifies as an exigency. Details: Washington, DC: Congressional Research Service, 2011. 7p. Source: Internet Resource: R41871: Accessed July 21, 2011 at: http://www.fas.org/sgp/crs/misc/R41871.pdf Year: 2011 Country: United States URL: http://www.fas.org/sgp/crs/misc/R41871.pdf Shelf Number: 122137 Keywords: Fourth AmendmentSearch and Seizure (U.S.)Warrantless Searches |
Author: Barbour, Emily C. Title: DNA Databanking: Selected Fourth Amendment Issues and Analysis Summary: Over the past few decades, state and federal lawmakers have promoted the development of databases containing DNA (deoxyribonucleic acid) profiles for individuals who are under the supervision of the criminal justice system due to their known or suspected involvement in a felony or other qualifying crime. Congress has demonstrated concern toward some aspects of DNA databanking by requiring expungement of a DNA profile in certain circumstances, prohibiting most non-forensic uses of DNA profiles and databases, and restricting familial searching. However, in general, Congress has taken a supportive attitude toward DNA databanking and has incentivized the development, expansion, and integration of DNA databases. As DNA database programs have widened in scope and grown in numbers, their consistency with the Fourth Amendment’s prohibition on unreasonable searches and seizures has increasingly been challenged. In the context of compulsory DNA collection, courts have widely upheld laws mandating the collection of DNA from persons who were convicted and are subject to the penal system’s custody or supervision. However, no judicial consensus has emerged regarding the constitutionality of mandating DNA collection from arrestees who have been criminally indicted. Instead, courts have split over the existence and scope of an arrestee’s reasonable expectation of privacy and the degree of privacy intrusion caused by DNA sampling. The limited number of court decisions in this area also suggests that there are conflicting opinions about the analogousness of DNA collection and fingerprinting. Courts have generally upheld the indefinite use and storage of a lawfully databanked DNA profile after its source’s conviction. However, not all courts agree that any post-conviction use of those profiles is constitutionally acceptable. In particular, observers are now raising questions about the Fourth Amendment consistency of using databases for non-forensic purposes and for familial searching — that is, using the DNA databases to locate potential relatives of an unidentified suspect. Currently, these concerns are largely confined to the scholarly literature — they have not come before a federal court — and are primarily centered on state database programs. Unlike some state DNA databases, the National DNA Index System (NDIS) and the Combined DNA Index System (CODIS) can not be used for either non-forensic research or intentional familial searching. However, the increase in states that authorize familial searching suggests that it may not be long before the constitutionality of familial searching comes before a federal court. As these issues percolate up to the courts, new advances and revelations in the science of forensic analysis and databanking may have potentially significant legal implications. Several courts have suggested that new forensic techniques and scientific findings would require them to reevaluate their legal conclusions and analysis. In particular, research into the scope and nature of the information revealed by the “junk” DNA used in forensic analysis may alter how courts measure the intrusiveness of DNA profiling if it suggests that “junk” DNA reveals more sensitive information about its source than scientists previously thought. Details: Washington, DC: Congressional Research Service, 2011. 23p. Source: Internet Resource: R41847: Accessed July 21, 2011 at: http://www.fas.org/sgp/crs/misc/R41847.pdf Year: 2011 Country: United States URL: http://www.fas.org/sgp/crs/misc/R41847.pdf Shelf Number: 122139 Keywords: DNA FingerprintingDNA Typing (U.S.)Fourth AmendmentOffender Supervision |
Author: Thompson II, Richard M. Title: Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses Summary: The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues. Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard human operator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digital network, and personnel on the ground. Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm’s way. These unmanned aircraft are most commonly known for their operations overseas in tracking down and killing suspected members of Al Qaeda and related organizations. In addition to these missions abroad, drones are being considered for use in domestic surveillance operations, which might include in furtherance of homeland security, crime fighting, disaster relief, immigration control, and environmental monitoring. Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use. This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court’s determination of the reasonableness of drone surveillance would likely be informed by location of the search, the sophistication of the technology used, and society’s conception of privacy in an age of rapid technological advancement. While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people’s expectations of privacy evolve. In the 112th Congress, several measures have been introduced that would restrict the use of drones at home. Senator Rand Paul and Representative Austin Scott introduced the Preserving Freedom from Unwarranted Surveillance Act of 2012 (S. 3287, H.R. 5925), which would require law enforcement to obtain a warrant before using drones for domestic surveillance, subject to several exceptions. Similarly, Representative Ted Poe’s Preserving American Privacy Act of 2012 (H.R. 6199) would permit law enforcement to conduct drone surveillance pursuant to a warrant, but only in investigation of a felony. Details: Washington, DC: Congressional Research Services, 2012. 23p. Source: CRS Report R42701: Internet Resource: Accessed September 13, 2012 at http://www.fas.org/sgp/crs/natsec/R42701.pdf Year: 2012 Country: United States URL: http://www.fas.org/sgp/crs/natsec/R42701.pdf Shelf Number: 126334 Keywords: Covert Surveillance, DronesFourth AmendmentLegislationSurveillanceSurveillance Techniques |
Author: Bloom, Robert M. Title: The Fourth Amendment Fetches Fido: New Approaches to Dog Sniffs Summary: Dogs' relationship to man as hunters, finders, protectors, and friends has existed for thousands of years. Today dogs serve very important law enforcement functions as sniffers in the investigation of crimes and other threats to society. The Fourth Amendment of the United States Constitution is of comparatively more recent vintage and seeks to protect the individual's privacy from infringement by the government. This Article deals with the Fourth Amendment implications when the government infringement is a dog sniff. In the Supreme Court's latest decision on dogs Florida v. Jardines, Franky, a drug-detection dog, walked onto the porch of Mr. Jardines' home, sniffed around and alerted his handler that drugs were inside the house. From this alert, the police obtained a search warrant for the home where they discovered a marijuana growing operation. The issue before the Court was whether Franky's sojourn to the porch constituted a Fourth Amendment search requiring justification and a warrant. Justice Scalia wrote for the Court in Florida v. Jardines and utilized a property based analysis in his desire to keep "easy cases easy." He held that uninvited sniffs of the home from the porch implicated the Fourth Amendment. This so called easy approach left several questions unanswered. This Article attempts to examine some of these questions, including what would happen if the dog sniff had occurred on a public sidewalk or if the dog sniff was of a person in a public place. Additionally, this Article explores the rationale for classifying dog sniffs as sui generis, thereby not implicating the Fourth Amendment. It debunks this rationale and suggests a more effective way to deal with dog sniffs in the future. Details: Boston: Boston College Law School, 2013. 30p. Source: Internet Resource: Legal STudies Research Paper Series; Research Paper 315: Accessed March 28, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330969## Year: 2013 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330969## Shelf Number: 132006 Keywords: Canine SearchesCriminal ProcedureDogsFourth Amendment |
Author: Smith, Michael L. Title: Regulating Law Enforcement's Use of Drones: The Need for State Legislation Summary: The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. In this article, I take up the task of analyzing and comparing state laws regulating the government's use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation. I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement's use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal. Details: Los Angeles: University of California, Los Angeles (UCLA) - School of Law, 2014. 31p. Source: Internet Resource: Accessed September 9, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492374 Year: 2014 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492374 Shelf Number: 133186 Keywords: Covert Surveillance, Drones (U.S.)DronesFourth AmendmentLegislationSurveillanceSurveillance Techniques |
Author: McAdams, Richard Title: The Law of Police Summary: Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how "police are different," focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one's threshold of doubt- the perceived probability of guilt at which one would search or seize a suspect. That police have a lower threshold of doubt plausibly justifies more judicial scrutiny of police searches than of non-police searches (as well as more-permissive rules when police perform tasks outside the scope of law enforcement). We also consider and critique Bill Stuntz's alternative explanation of the relevant doctrine. Details: Chicago: University of Chicago Law School, 2015. 31p. Source: Internet Resource: Public Law and Legal Theory Working Papers no. 505: Accessed April 22, 2015 at: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1955&context=public_law_and_legal_theory Year: 2015 Country: United States URL: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1955&context=public_law_and_legal_theory Shelf Number: 135360 Keywords: Fourth AmendmentPolice Behavior (U.S.)Search and Seizure |
Author: European Parliament. Directorate-General for Internal Policies. Policy Department C Citizens' Rights and Constitutional Affairs Title: The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens Summary: In US law, there are a number of different legal sources that govern data protection in the field of federal law enforcement. This study first considers the two most important sources of data protection law-the Fourth Amendment to the US Constitution and the Privacy Act of 1974. It then turns to the most significant methods of information collection that are available for ordinary criminal investigations and national security investigations and the data protection guarantees set down under the laws authorizing and regulating such information collection. The Fourth Amendment prohibits "unreasonable searches and seizures" by the government. Reasonableness is established if the search or seizure is conducted pursuant to a valid warrant, that is, a judicial order based on a showing of probable cause and on a particular description of the property to be searched and the items to be seized. Reasonableness can also be established if one of the exceptions to the warrant requirements exists. In the data protection context, however, the application of the Fourth Amendment is relatively limited because of the third-party records doctrine which holds that individuals do not have an expectation of privacy in personal data that they voluntarily turn over to third parties like financial institutions and communications providers. With regard to EU citizens, the Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment. Among U.S. laws, the Privacy Act of 1974 is the closest analogue to a European data protection law in that it seeks to regulate comprehensively personal data processing, albeit only with respect to federal government departments and agencies. It regulates the collection, use, and disclosure of all types of personal information, by all types of federal agencies, including law enforcement agencies. At a general level, the Privacy Act contains most of the elements of the EU right to personal data protection. However, it only protects US citizens and permanent residents, not EU citizens. Furthermore, there are a number of exemptions available specifically for law enforcement agencies. As a result, the benefits of the proposed legislation on judicial redress for EU citizens are unclear. The proposed legislation contemplates three types of law suits, two of which are designed to protect the right of access to and correction of personal data, and one of which enables individuals to obtain compensation for unlawful disclosures of personal data. Since law enforcement agencies commonly exempt their data bases from the access requirements of the Privacy Act, the right of action for intentional or willful disclosures that cause actual damage is the only one that would be available on a general basis. In investigations involving ordinary crime, there are at least three different methods of personal data collection available to law enforcement officials: (1) use of private sources like commercial data brokers; (2) court and administrative subpoenas; (3) electronic surveillance and access to electronic communications based on a court order under the Electronic Communications Privacy Act. These information-gathering methods afford the same level of data protection for US and EU citizens. With respect to EU data protection law, however, some of these methods contain relatively few data protection guarantees. In the case of private sources of personal data, this is attributable to the absence of a comprehensive data protection scheme in the private sector and the vast quantities of personal information freely available to market actors and, consequently, also to law enforcement officials. With respect to the subpoena power and access to communications metadata and subscriber records (under the Stored Communications Act and the Pen Register Act), the lack of significant data protection guarantees is associated with the standard of "relevance" to any type of criminal investigation and the permissive application of that standard by the courts. The law and jurisprudence of "relevance," in turn, is driven by the failure of US law to recognize a robust privacy interest in the personal data held by corporate entities and other third parties. In investigations involving national security threats, which can involve both an intelligence and a law enforcement component, there are a number of additional means available to the government: (1) a special type of administrative subpoena known as a "national security letter"; (2) surveillance authorized by the Foreign Intelligence Surveillance Act (FISA); (3) any other form of intelligence gathering authorized by Executive Order 12,333 (and not covered by FISA). The information gathered through such methods can be shared with criminal prosecutors if relevant for law enforcement purposes. Foreign intelligence gathering, both inside and outside the United States, follows a two-track scheme, one for US persons and another for non-US persons. With the exception of FISA electronic and physical surveillance orders, the data protection guarantees afforded to non-US persons are minimal. The stated intent of Presidential Policy Directive 28 is to provide for stronger personal data protection for non-US persons, but it is difficult to come to any conclusions at this point in time on what effect it will have. More generally, even with respect to US persons, personal data protection under foreign intelligence law raises a couple of questions. The first concerns the point in time when the right to privacy is burdened by government action. The US government has suggested that in the case of bulk collection of personal data, harm to the privacy interest only occurs after the personal data is used to search, or results from a search of, the information included in the data base. This position stands in marked contrast with EU law, where it is well established that bulk collection, even before the personal data is accessed, is a serious interference with the right to personal data protection because of the number of people and the amount of personal data involved. The second question concerns the conditions under which personal data can be shared between intelligence and law enforcement officials. In the realm of data processing by law enforcement and intelligence agencies, the European courts have emphasized that intrusive surveillance can only be conducted to combat serious threats that are carefully defined in law. They have also held that the information that results from such surveillance can only be used to combat those serious threats, whether to take national security measures or to prosecute the associated criminal offenses. In US law, by contrast, the law allows for intelligence to be transferred to the police and criminal prosecutors for any type of law enforcement purpose.. Details: Brussels: European Union, 2015. 40p. Source: Internet Resource: Accessed October 21, 2015 at: http://www.europarl.europa.eu/RegData/etudes/STUD/2015/519215/IPOL_STU(2015)519215_EN.pdf Year: 2015 Country: Europe URL: Shelf Number: 137049 Keywords: Criminal InvestigationsData ProtectionFourth AmendmentIntelligence GatheringPrivacy Act of 1974Search and Seizure |
Author: Morrison, Caren Myers Title: Body Camera Obscura: The Semiotics of Police Video Summary: Our understanding of violent encounters between the police and civilians is now primarily mediated by video images. With surprising rapidity, recording these encounters has become an integral part of modern policing, sparking the current body camera bonanza. When these recordings are used as evidence in police use-of-force cases, the factfinders must decide whether the police officer's actions were "reasonable" under the Fourth Amendment. But there is an unrecognized fault line between "police video" (video recorded by the police in the course of their official duties) and "eyewitness video" (recorded by bystander-witnesses). Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, eyewitness videos typically offer the counter-narrative of an abusive state. These images have evidentiary value, but also cultural currency. They reflect back to us our feelings about violence, race, masculinity, and the law. This article proposes a descriptive critique of the use of video evidence in assessing the lawfulness of police violence. Using insights from semiotics, film criticism, cultural theory, and cognitive psychology, it attempts to sketch out a more nuanced way of approaching video evidence in the context of these cases. Details: Atlanta: Georgia State University - College of Law, 2016. 44p. Source: Internet Resource: Accessed August 30, 2016 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2826747 Year: 2016 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2826747 Shelf Number: 140085 Keywords: Body-Worn CamerasFourth AmendmentPolice AccountabilityPolice ShootingsPolice Use of ForceVideo Technology |
Author: Carbado, Devon W. Title: From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence Summary: 2014 to 2016 likely will go down as a significant if not watershed moment in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police officers to force engagements with African Americans with little or no basis. The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping black people and killing black people. This Article demonstrates precisely how by employing a series of hypotheticals to reveal the ways in which the extraordinary violence police officers often use against Africans Americans can grow out of the ordinary police interactions Fourth Amendment law empowers police officers to stage. Details: Los Angeles: UCLA School of Law, 2016. 56p. Source: Internet Resource: UCLA School of Law, Public Law Research Paper No. 16-41 : Accessed October 6, 2016 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2844312 Year: 2016 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2844312 Shelf Number: 147823 Keywords: African AmericansDeadly ForceFourth AmendmentPolice Use of ForceRacial Profiling |
Author: American Civil Liberties Union Title: Challenging Government Hacking in Criminal Cases Summary: his report sets out key legal arguments and strategies for defense attorneys to challenge evidence seized by government-installed computer malware as a violation of the Fourth Amendment and federal law. Over the past several years, the government has increasingly turned to hacking and malware as an investigative technique. The FBI has begun deploying software designed to infiltrate and control, disable, or surveil a computer's use and activity. This kind of widespread and secretive hacking by the government is controversial and of questionable constitutionality. The report assesses recent court decisions evaluating the government's use of the controversial hacking technique and makes recommendations for the most promising avenues to have unconstitutionally obtained evidence suppressed. Details: New York: ACLU, 2017. 188p. Source: Internet Resource: Accessed May 8, 2017 at: https://www.aclu.org/sites/default/files/field_document/malware_guide_3-30-17-v2.pdf Year: 2017 Country: United States URL: https://www.aclu.org/sites/default/files/field_document/malware_guide_3-30-17-v2.pdf Shelf Number: 145347 Keywords: Civil Liberties Computer Hacking Criminal Investigation Fourth AmendmentPrivacy Surveillance |
Author: Joh, Elizabeth E. Title: The Undue Influence of Surveillance Technology Companies on Policing Summary: Conventional wisdom assumes that the police are in control of their investigative tools. But with surveillance technologies, this is not always the case. Increasingly, police departments are consumers of surveillance technologies that are created, sold, and controlled by private companies. These surveillance technology companies exercise an undue influence over the police today in ways that arent widely acknowledged, but that have enormous consequences for civil liberties and police oversight. Three seemingly unrelated examples -- stingray cellphone surveillance, body cameras, and big data software -- demonstrate varieties of this undue influence. These companies act out of private self-interest, but their decisions have considerable public impact. The harms of this private influence include the distortion of Fourth Amendment law, the undermining of accountability by design, and the erosion of transparency norms. This Essay demonstrates the increasing degree to which surveillance technology vendors can guide, shape, and limit policing in ways that are not widely recognized. Any vision of increased police accountability today cannot be complete without consideration of the role surveillance technology companies play. Details: Draft, 2017. 31p. Source: Internet Resource: N.Y.U. L. Review Online (2017 Forthcoming): Accessed February 7, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2924620 Year: 2017 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2924620 Shelf Number: 149013 Keywords: Body-Worn Cameras Fourth AmendmentPolice Technology Privacy Surveillance |
Author: Fields, Shawn E. Title: Stop and Frisk in a Concealed Carry World Summary: This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer's observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that "public gun possession" equals "criminal activity." Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes four contributions to the existing literature. First, it corrects the oft-repeated misconception that the Supreme Court's recent Second Amendment jurisprudence has altered the Fourth Amendment's reasonable suspicion standard. Second, it articulates the need for a "gun possession plus" reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. Fourth, it justifies this adaptation of "reasonable suspicion" with reference to traditional risk-assessment tort principles, including the Hand Formula. In doing so, the Article seeks a balanced and defensible approach to assessing law enforcement interactions with lawfully-armed civilians in the age of concealed carry. Details: San Diego: University of San Diego, School of law, 2018. Source: Internet Resource: Research Paper No. 18-339: Accessed May 8, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3156692 Year: 2018 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3156692 Shelf Number: 150102 Keywords: Concealed CarryConcealed HandgunsFourth AmendmentGun PermitsGun PolicyStop and Frisk |
Author: Oliva, Jennifer D. Title: Prescription Drug Policing: The Right to Protected Health Information Privacy Pre- and Post-Carpenter Summary: This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health realities triggered by the United States drug overdose epidemic. Reputable reporting sources, public health scholars, and pundits frequently frame the ongoing American overdose crisis as a prescription drug overdose problem attributable to the overprescribing of opioid analgesics. The problem with this narrative is that it runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit drug use and not prescription drug abuse. The prescription-centric frame has nonetheless sparked the rapid rise of law enforcement and regulatory surveillance of prescribers and patients in the form of state prescription drug monitoring program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed prescription, collect a stunning amount of patient protected health information (PHI). To put things in context, Americans filled 4,063,166,658 prescriptions at retail pharmacies in 2017 alone. PDMPs are largely criminal and regulatory law enforcement tools dressed up in public health promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor shopper crack downs, the Drug Enforcement Administration (DEA) has made it a routine practice to self-issue administrative subpoenas to conduct warrantless, dragnet-style sweeps of the swarms of sensitive protected health data stored in state PDMP databases. This widespread law enforcement prescribing surveillance tactic, which reveals highly personal health information, including, among other things, patients' contraceptive histories, gender transition decisions, and HIV diagnoses, raises serious constitutional privacy concerns. The Supreme Court's recent Fourth Amendment decision, Carpenter v. United States, however, may limit law enforcement's ability to continue to access droves of electronically-stored patient prescribing-related PHI in the custody of a state regulatory agency without a court order supported by probable cause. The Court's decision in Carpenter already has been heralded as "a landmark privacy case," which this article uniquely applies to prescription drug monitoring and law enforcement surveillance tactics provoked by the U.S. overdose crisis and its dominant narrative. Carpenter and the Fourth Amendment doctrines central to its holding motivate this article and animate its two core contentions. First, this article maintains that pertinent pre-Carpenter precedent requires the DEA to obtain a Fourth Amendment warrant in order to conduct sweeps of state PDMP databases searching patient protected health information. It then posits that courts are even more likely to rule that warrantless DEA searches of sensitive and frequently revealing health care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, PDMP protected health information is entitled to Fourth Amendment warrant protection. Details: Morgantown, WV: West Virginia University College of Law, 2018. 66p. Source: Internet Resource: WVU College of Law Research Paper No. 2018-005: Accessed October 24, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3225000 Year: 2018 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3225000 Shelf Number: 153078 Keywords: Drug Abuse and Addiction Drug Monitoring Programs Fourth AmendmentOpioids Prescription Drug Abuse Prescription Drugs Privacy |
Author: Ristroph, Alice Title: The Constitution of Police Violence Summary: Police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. From the 1960s to the present, federal courts have persistently endorsed a very expansive police authority to make seizures - to stop persons, to arrest them, and to use force if the arrestee resists. This Article reveals the full scope of this seizure authority. Of particular importance are the concepts of resistance and compliance. Demands for compliance with officers, and a condemnation of resistance that authorizes police to meet resistance with violence, run throughout constitutional doctrine. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) elsewhere protected in American law. Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire proposals to reduce and redistribute those risks. Details: Unpublished paper, 2016. 58p. Source: Internet Resource: Seton Hall Public Law Research Paper: Accessed January 28, 2019 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847300 Year: 2016 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847300 Shelf Number: 154406 Keywords: Fourth AmendmentPolice Deadly ForcePolice Use of ForcePolice ViolenceRacial Profiling in Law EnforcementRacismStop and SearchTraffic Stops |
Author: Capers, I. Bennett Title: Afrofuturism, Critical Race Theory, and Policing in the Year 2044 Summary: In 2044, the United States is projected to become a "majority-minority" country, with people of color making up more than half of the population. And yet in the public imagination-from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World - the future is usually envisioned as majority white. What might the future look like in year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color-Afrofuturists and Critical Race Theorists-have imagined the future. What can we learn from Afrofuturism, the term given to "speculative fiction that treats African-American themes and addresses African-American concerns [in the context of] techno culture?" And what can we learn from Critical Race Theory and its "father" Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world? Details: New York: Brooklyn Law School, 2019. 58p. Source: Internet Resource: Brooklyn Law School, Legal Studies Paper No. 586: Accessed April 25, 2019 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3331295 Year: 2019 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3331295 Shelf Number: 155511 Keywords: African AmericansBig DataCritical Race TheoryFourth AmendmentPolicingSurveillance |