Some impressive articles have been published since the last round-up I did in February; if you missed that post, see: Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more.
New Legal Scholarship (with abstracts where available)
Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373 (2014)
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress were to repeal ECPA and enact a new privacy statute to replace it.
The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for noncontent records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even U.S.-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes.
This Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for U.S.-based users and a permissive regime for users located abroad.
**And a Response to Kerr's article: Ryan Calo, Communications Privacy for and by Whom?, 162 U. Pa. L. Rev. Online 231 (2014) **Andrea M. Matwyshyn, Privacy, the Hacker Way, 87 S. Cal. L. Rev. 1 (2014)
This Article seeks to clarify the relationship between contract law and promises of privacy and information security. It challenges three commonly held misconceptions in privacy literature regarding the relationship between contract and data protection—the propertization fatalism, the economic value fatalism, and the displacement fatalism—and argues in favor of embracing contract law as a way to enhance consumer privacy. Using analysis from Sorrell v. IMS Health Inc., marketing theory, and the work of Pierre Bourdieu, it argues that the value in information contracts is inherently relational: consumers provide “things of value”—rights of access to valuable informational constructs of identity and context—in exchange for access to certain services provided by the data aggregator. This Article presents a contract-based consumer protection approach to privacy and information security. Modeled on trade secret law and landlord-tenant law, it advocates for courts and legislatures to adopt a “reasonable data stewardship” approach that relies on a set of implied promises—nonwaivable contract warranties and remedies—to maintain contextual integrity of information and improve consumer privacy.Matthew F. Meyers, GPS “Bullets” and the Fourth Amendment, 4 Wake Forest L. Rev. Online 18 (2014) (No Abstract)
From the Fordham Law Review, April 2014 | Vol. 82, No. 5:
Peter Margulies, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism (No Abstract)
Casey J. McGowan, The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program
In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program.
The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity. Critics of the program, however, assert that billions of records cannot possibly be relevant when a negligible portion of those records are actually linked to terrorist activity. This Note examines the conflicting interpretations of “relevant,” and concludes that while the current state of the law permits bulk data collection, the power of the NSA to collect records on such a large scale must be reined in.
Thomas Rosso, Unlimited Data?: Placing Limits on Searching Cell Phone Data Incident to a Lawful Arrest
The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has held that, under the exception, police may search any containers found on the arrestee’s person without examining the likelihood of uncovering weapons or evidence related to the arrestee’s offense. In light of these principles, should the exception permit officers to search the data of a cell phone found on an arrestee’s person?
In January 2014, the Supreme Court granted certiorari to review two appellate rulings and resolve a split among the circuits and state courts on this question. This Note examines three approaches courts have taken to resolve the issue: a broad approach, a middle approach, and a narrow approach. This Note argues that the Supreme Court should adopt the narrow approach and prohibit warrantless searches of cell phone data under the exception.Stephen Moor, Cyber Attacks and the Beginnings of an International Cyber Treaty, North Carolina Journal of International Law and Commercial Regulation (Fall 2013) (No Abstract)
Katherine Booth Wellington, Cyberattacks on Medical Devices and Hospital Networks: Legal Gaps and Regulatory Solutions, 30 Santa Clara High Tech. L.J. 139 (2014)
Cyberattacks on medical devices and hospital networks are a real and growing threat. Malicious actors have the capability to hack pacemakers and insulin pumps, shut down hospital networks, and steal personal health information. This Article analyzes the laws and regulations that apply to cyberattacks on medical devices and hospital networks and argues that the existing legal structure is insufficient to prevent these attacks. While the Computer Fraud and Abuse Act and the Federal Anti-Tampering Act impose stiff penalties for cyberattacks, it is often impossible to identify the actor behind a cyberattack—greatly decreasing the deterrent power of these laws. Few laws address the role of medical device manufacturers and healthcare providers in protecting against cyberattacks. While HIPAA incentivizes covered entities to protect personal health information, HIPAA does not apply to most medical device manufacturers or cover situations where malicious actors cause harm without accessing personal health information. Recent FDA draft guidance suggests that the agency has begun to impose cybersecurity requirements on medical device manufacturers. However, this guidance does not provide a detailed roadmap for medical device cybersecurity and does not apply to healthcare providers. Tort law may fill in the gaps, although it is unclear if traditional tort principles apply to cyberattacks. New legal and regulatory approaches are needed. One approach is industry self-regulation, which could lead to the adoption of industry-wide cybersecurity standards and lay the groundwork for future legal and regulatory reform. A second approach is to develop a more forward-looking and flexible FDA focus on evolving cybersecurity threats. A third approach is a legislative solution. Expanding HIPAA to apply to medical device manufacturers and to any cyberattack that causes patient harm is one way to incentivize medical device manufactures and healthcare providers to adopt cybersecurity measures. All three approaches provide a starting point for considering solutions to twenty-first century cybersecurity threats.Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31 (2014)
The Sixth Amendment’s Confrontation Clause guarantees the accused the right to confront witnesses against him. In this article I examine child pornography prosecution, in which we must apply this constitutional standard to digital forensic evidence. I ask, “Who is the witness to an Internet crime?”
The Confrontation Clause proscribes the admission of hearsay. In Ohio v. Roberts, the Supreme Court stated that the primary concern was reliability and that hearsay might be admissible if the reliability concerns were assuaged. Twenty-four years later, in Crawford v. Washington, the Supreme Court repositioned the Confrontation Clause of the Sixth Amendment as a procedural right. Even given assurances of reliability, “testimonial” evidence requires a physical witness.
This witness production requirement could have been sensible in an era when actions were physically tied to humans. But in an Internet age, actions may take place at degrees removed from any physical person.
The hunt for a witness to digital forensic evidence involved in child pornography prosecution winds through a series of law enforcement protocols, on an architecture owned and operated by private companies. Sentencing frameworks associated with child pornography similarly fail to reflect awareness of the way that actions occur online, even while they reinforce what is at stake.
The tensions I point to in this article are emblematic of emerging questions in Internet law. I show that failing to link the application of law and its undergirding principles to a digital world does not escape the issue, but distorts it. This failure increases the risk that our efforts to preserve Constitutional rights are perverted or made impotent.Yana Welinder, Facing Real-Time Identification in Mobile Apps & Wearable Computers, 30 Santa Clara High Tech. L.J. 89 (2014)
The use of face recognition technology in mobile apps and wearable computers challenges individuals’ ability to remain anonymous in public places. These apps can also link individuals’ offline activities to their online profiles, generating a digital paper trail of their every move. The ability to go off the radar allows for quiet reflection and daring experimentation—processes that are essential to a productive and democratic society. Given what we stand to lose, we ought to be cautious with groundbreaking technological progress. It does not mean that we have to move any slower, but we should think about potential consequences of the steps that we take.
This article maps out the recently launched face recognition apps and some emerging regulatory responses to offer initial policy considerations. With respect to current apps, app developers should consider how the relevant individuals could be put on notice given that the apps will not only be using information about their users, but also about the persons being identified. They should also consider how the apps could minimize their data collection and retention and keep the data secure. Today’s face recognition apps mostly use photos from social networks. They therefore call for regulatory responses that consider the context in which users originally shared the photos. Most importantly, the article highlights that the Federal Trade Commission’s first policy response to consumer applications that use face recognition did not follow the well-established principle of technology neutrality. The article argues that any regulation with respect to identification in real time should be technology neutral and narrowly address harmful uses of computer vision without hampering the development of useful applications.Valerie Redmond, Note, I Spy with My Not So Little Eye: A Comparison of Surveillance Law in the United States and New Zealand, 37 Fordham Int’l L.J. 733 (2014) (No Abstract)
Lawrence Rosenthal, Binary Searches and the Central Meaning of the Fourth Amendment, 22 Wm. & Mary Bill Rts. J. 881 (2014) (No Abstract)
Jason P. Nance, School Surveillance and the Fourth Amendment, 2014 Wisc. L. Rev. 79 (2014)
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 schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.
Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances, students’ Fourth Amendment rights should not be abridged but strengthened.Meredith Mays Espino, Sometimes I Feel Like Somebody’s Watching Me . . . Read?: A Comment On The Need For Heightened Privacy Rights For Consumers Of Ebooks, 30 J. Marshall J. Info. Tech. & Privacy L. 281 (2013)
Emily Katherine Poole, Hey Girls, Did You Know? Slut-Shaming on the Internet Needs to Stop, 48 USF L. Rev. 221 (2013)
When it comes to sexual expression, females are denied the freedoms enjoyed by males. Even though sexual acts often take both a male and a female, it is the girl that faces society’s judgment when her behavior is made public. The Internet has created a forum for such "slut shaming" to occur on a whole new level. Now when a girl is attacked for her sexuality, her attackers can be spread across the U.S., or even the world. The Internet is an incredible resource for sharing and gaining information, but it is also allowing attacks on female sexuality to flourish.
While slut shaming can and does occur to females of all ages, this Articles focuses on its prevalence among teen and preteen girls, falling under the umbrella of cyberbullying. Because actions and legislation that address cyber slut-shaming can also remedy other types of cyberbullying, the problems and proposed solutions elaborated in this Article can be expanded to include all types of cyberbullying. I chose to focus on one specific and pervasive harm — that caused by sexual shaming — to help bring attention to both the repercussions of cyberbullying and to the broader problem of gender inequality that persists in forums and social networking sites across the Internet.Sprague, Robert, No Surfing Allowed: A Review and Analysis of Legislation Prohibiting Employers from Demanding Access to Employees’ and Job Applicants’ Social Media Accounts (January 31, 2014). Albany Law Journal of Science and Technology, Vol. 24, 2014
This article examines recent state legislation prohibiting employers from requesting username and password information from employees and job applicants in order to access restricted portions of those employees’ and job applicants’ personal social media accounts. This article raises the issue of whether this legislation is even needed, from both practical and legal perspectives, focusing on: (a) how prevalent the practice is of requesting employees’ and job applicants’ social media access information; (b) whether alternative laws already exist which prohibit employers from requesting employees’ and job applicants’ social media access information; and (c) whether any benefits can be derived from this legislative output. After analyzing the potential impact of this legislation on employees, job applicants, and employers, this article concludes that such legislation is but an answer seeking a problem and raises more questions than it answers.From the Washington University Law Review, Volume 89| Number 1| March 2014
Danielle Keats Citron & Frank Pasquale, The Scored Society: Due Process for Automated Predictions, 89 Wash. L. Rev. 1
Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.
Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, systems could launder biased and arbitrary data into powerfully stigmatizing scores.
The age of “big data” has come to policing. In Chicago, police officers are paying particular attention to members of a “heat list”: those identified by a risk analysis as most likely to be involved in future violence. In Charlotte, North Carolina, the police have compiled foreclosure data to generate a map of high-risk areas that are likely to be hit by crime. In New York City, the N.Y.P.D. has partnered with Microsoft to employ a “Domain Awareness System” that collects and links information from sources like CCTVs, license plate readers, radiation sensors, and informational databases. In Santa Cruz, California, the police have reported a dramatic reduction in burglaries after relying upon computer algorithms that predict where new burglaries are likely to occur. Unlike the data crunching performed by Target, Walmart, or Amazon, the introduction of big data to police work raises new and significant challenges to the regulatory framework that governs conventional policing. This article identifies three uses of big data and the questions that these tools raise about conventional Fourth Amendment analysis. Two of these examples, predictive policing and mass surveillance systems, have already been adopted by a small number of police departments around the country. A third example — the potential use of DNA databank samples — presents an untapped source of big data analysis. While seemingly quite distinct, these three examples of big data policing suggest the need to draw new Fourth Amendment lines now that the government has the capability and desire to collect and manipulate large amounts of digitized information.
David C. Vladeck, Machines Without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (No Abstract)All of Volume 40, Issue 2 of the William Mitchell Law Review: Legal Issues in a World of Electronic Data, which includes the following articles:
Roland L. Trope and Stephen J. Humes, Before Rolling Blackouts Begin: Briefing Boards on Cyber Attacks That Target and Degrade the Grid
Damien Riehl and Jumi Kassim, Is “Buying” Digital Content Just “Renting” for Life? Contemplating a Digital First-Sale Doctrine
Stephen T. Middlebrook and Sarah Jane Hughes, Regulating Cryptocurrencies in the United States: Current Issues and Future Directions
Nathan Newman, The Costs of Lost Privacy: Consumer Harm and Rising Economic Inequality in the Age of GoogleSlobogin, Christopher, Panvasive Surveillance, Political Process Theory and the Nondelegation Doctrine (April 23, 2014). Georgetown Law Journal, Vol. 102, 2014; Vanderbilt Public Law Research Paper No. 14-13 (SSRN)
Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement — large-scale police actions that are not based on individualized suspicion — and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine — if not the (supposedly moribund) doctrine itself — can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch.
Kerr, Orin S., The Fourth Amendment and the Global Internet (April 23, 2014). Stanford Law Review, Vol. 65, 2015, Forthcoming (SSRN)
This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet addressed by courts. First, the Supreme Court’s decision in United States v. Verdugo-Urquidez prompts several puzzles about how the Fourth Amendment treats monitoring on a global network where many lack Fourth Amendment rights. For example, can online contacts help create those rights? What if the government mistakenly believes that a target lacks Fourth Amendment rights? How does the law apply to monitoring of communications between those who have and those who lack Fourth Amendment rights? The second category of problems follows from different standards of reasonableness that apply outside the United States and at the international border. Does the border search exception apply to purely electronic transmission? And if reasonableness varies by location, is the relevant location the search, the seizure, or the physical person?
The article explores and answers each of these questions through the lens of equilibrium-adjustment. Today’s Fourth Amendment doctrine is heavily territorial. The article aims to adapt existing principles for the transition from a domestic physical environment to a global networked world in ways that maintain the preexisting balance of Fourth Amendment protection. On the first question, it rejects online contacts as a basis for Fourth Amendment protection; allows monitoring when the government wrongly but reasonably believes that a target lacks Fourth Amendment rights; and limits monitoring between those who have and those who lack Fourth Amendment rights. On the second question, it contends that the border search exception should not apply to electronic transmission and that reasonableness should follow the location of data seizure. The Internet requires search and seizure law to account for the new facts of international investigations. The solutions offered in this article offer a set of Fourth Amendment rules tailored to the reality of global computer networks.Marthews, Alex and Tucker, Catherine, Government Surveillance and Internet Search Behavior (March 24, 2014) (SSRN)
This paper uses data from Google Trends on search terms from before and after the surveillance revelations of June 2013 to analyze whether Google users' search behavior shifted as a result of an exogenous shock in information about how closely their internet searches were being monitored by the U. S. government. We use data from Google Trends on search volume for 282 search terms across eleven different countries. These search terms were independently rated for their degree of privacy-sensitivity along multiple dimensions. Using panel data, our result suggest that cross-nationally, users were less likely to search using search terms that they believed might get them in trouble with the U. S. government. In the U. S., this was the main subset of search terms that were affected. However, internationally there was also a drop in traffic for search terms that were rated as personally sensitive. These results have implications for policy makers in terms of understanding the actual effects on search behavior of disclosures relating to the scale of government surveillance on the Internet and their potential effects on international competitiveness.Hollis, Duncan B., Re-Thinking the Boundaries of Law in Cyberspace: A Duty to Hack? (April 12, 2014). in Cyberwar: Law & Ethics for Virtual Conflicts (J. Ohlin et al., eds., Oxford University Press, 2014 Forthcoming) (SSRN)
Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.
This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.
This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.Stopczynski, Arkadiusz and Greenwood, Dazza and Hansen, Lars Kai and Pentland, Alex, Privacy for Personal Neuroinformatics (April 21, 2014) (SSRN)
Human brain activity collected in the form of Electroencephalography (EEG), even with low number of sensors, is an extremely rich signal raising legal and policy issues. Traces collected from multiple channels and with high sampling rates capture many important aspects of participants' brain activity and can be used as a unique personal identifier. The motivation for sharing EEG signals is significant, as a mean to understand the relation between brain activity and well-being, or for communication with medical services. As the equipment for such data collection becomes more available and widely used, the opportunities for using the data are growing; at the same time however inherent privacy risks are mounting. The same raw EEG signal can be used for example to diagnose mental diseases, find traces of epilepsy, and decode personality traits. The current practice of the informed consent of the participants for the use of the data either prevents reuse of the raw signal or does not truly respect participants' right to privacy by reusing the same raw data for purposes much different than originally consented to. Here we propose an integration of a personal neuroinformatics system, Smartphone Brain Scanner, with a general privacy framework openPDS. We show how raw high-dimensionality data can be collected on a mobile device, uploaded to a server, and subsequently operated on and accessed by applications or researchers, without disclosing the raw signal. Those extracted features of the raw signal, called answers, are of significantly lower-dimensionality, and provide the full utility of the data in given context, without the risk of disclosing sensitive raw signal. Such architecture significantly mitigates a very serious privacy risk related to raw EEG recordings floating around and being used and reused for various purposes.Reeves, Shane R. and Johnson, William J., Autonomous Weapons: Are You Sure These are Killer Robots? Can We Talk About It? (April 30, 2014). The Army Lawyer 1 (April 2014) (SSRN)
The rise of autonomous weapons is creating understandable concern for the international community as it is impossible to predict exactly what will happen with the technology. This uncertainty has led some to advocate for a preemptive ban on the technology. Yet the emergence of a new means of warfare is not a unique phenomenon and is assumed within the Law of Armed Conflict. Past attempts at prohibiting emerging technologies use as weapons — such as aerial balloons in Declaration IV of the 1899 Hague Convention — have failed as a prohibitive regime denies the realities of warfare. Further, those exploring the idea of autonomous weapons are sensitive not only to their legal obligations, but also to the various ethical and moral questions surrounding the technology. Rather than attempting to preemptively ban autonomous weapons before understanding the technology’s potential, efforts should be made to pool the collective intellectual resources of scholars and practitioners to develop a road forward. Perhaps this would be the first step to a more comprehensive and assertive approach to addressing the other pressing issues of modern warfare.Timothy C. MacDonnell, Justice Scalia’s Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism (SelectedWorks) (2014)
Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.