Current Issue

Volume 2014 – Issue 1 (Spring)

Articles

“The Revolution Will Be Tweeted, But the Tweets Will Be Subpoenaed: Reimagining Fourth Amendment Privacy to Protect Associational Anonymity” by Chris J. Chasin
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The associational privacy doctrine has historically protected the anonymity of expressive association, shielding those in unpopular social, political, and religious groups from the substantial chilling effect that public identification can have on First Amendment activity. Group activity, however, has changed since the doctrine’s establishment: technology and social media are now an inseparable part of modern social movements and modern life. Government surveillance of network data, an increasingly visible law enforcement practice since September 11, now threatens to strip the anonymity so vital to expressive activity.
This surveillance occurs at three distinct levels. At the recipient level, the government can access information voluntarily transmitted over the Internet. At the transmitter level, the government can obtain communications information from service providers. And at the reconstructive level, the government can use data mining software and disparate, scattered sources of information to reconstruct individual activities and social networks.
At each of these levels, the information that the government seeks falls outside the scope of the Fourth Amendment’s protections, which are based on an unworkable binary conception of privacy. But privacy is fluid, and access at each of these levels has a clear potential to chill expressive association. Expanding on existing Fourth Amendment and First Amendment scholarship, this Article examines the First Amendment hazards of failing to protect these “unreasonable” expectations of privacy. It seeks to more fully integrate associational privacy concerns into the Fourth Amendment context by proposing a novel framework of potential expansions to the Katz doctrine, based on the recognition of “unreasonable” expectations of privacy.

“Facing the Tragic Question: Citizen Journalism and Surveillance of Police in Public Spaces” by Bryce Clayton Newell
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Citizens recording police, a form of action that has been termed “sousveillance” (surveillance from underneath) or the “participatory panopticon,” has become increasingly common in recent years. Citizen media can have a substantial impact on policing and police image management—and thus affect public perceptions of police legitimacy. On the other hand, police departments are increasingly utilizing sophisticated visual surveillance technologies, such as officer-mounted wearable cameras, to document police-citizen encounters. In some states, eavesdropping statutes have been applied against citizens attempting to record encounters with police officers, often while these same statutes contain exemptions for officer-initiated recordings. Courts have begun to weigh in on the legal rights of citizens documenting police action—and the constitutionality of the state eavesdropping laws that prohibit such conduct—and have generally begun to recognize a First Amendment constitutional right to film police in public spaces. However, the continued proliferation of recording devices and smartphone applications designed to allow citizens to covertly record encounters with police officers in efforts to hold public officials accountable puts some users (perhaps even unwittingly) at serious legal risk. This situation presents a distinct problem—a problem of one-sided surveillance power and limited transparency that potentially threatens the constitutional rights and freedoms of American citizens. This Article examines, theoretically, the role that citizen media should play as a liberty-preserving form of reciprocal transparency, what forms of respect ought to be owed by camera-wielding citizens to the police officers and other subjects of their recordings in public spaces, and what moral and legal obligations citizen journalists may have (or may not have) to respect and obey wiretapping laws that prohibit recording in public spaces without all-party consent.

“Freedom to Filter Versus User Control: Limiting the Scope of § 230(c)(2) Immunity” by Nicholas Conlon
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Section 230(c)(2) of the Communications Decency Act provides a safe harbor to Internet and software providers who use and/or distribute filtering technologies such as blocking software and search engines. Congress passed § 230 in order to incentivize the development of technologies that maximize users’ control over what material they receive. But some courts have interpreted the language of § 230(c)(2) broadly enough to immunize providers who covertly and unilaterally block material to serve their own interests, as opposed to the interests of their users. This Article proposes an interpretation of § 230(c)(2) that is consistent with Congress’s preference for user control technologies. Under my interpretation, a provider must satisfy one of two conditions in order to be immune from liability. First, the provider can show that its filtering technology exhibits user control. Alternatively, the provider can establish that it believed in good faith that the material it has filtered degraded the quality of its service for users.

“High-Frequency Trading, Order Types, and the Evolution of the Securities Market Structure: One Whistleblower’s Consequences for Securities Regulation” by Stanislav Dolgopolov
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This Article analyzes—through the lens of securities regulation—the contributions of Haim Bodek, an advocate of reforming the securities market structure and a whistleblower who brought attention to several questionable practices of high-frequency traders and trading venues, including their use of complex and, arguably, nontransparent order types. More specifically, the Article addresses several key issues raised and discussed by Haim Bodek, such as the order type controversy and its implications for high-frequency traders, the status of self-regulatory organizations, trading obligations and privileges of market makers, and the duty of best execution, and aims to fit these issues into the evolving boundaries of civil liability under federal securities law and the reach of a private right of action.

Essay

“Federated Identity Management and NSTIC: Co-Managing Information Privacy” by Amanda Craig
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Notes

“Engineering a Solution to Climate Change: Suggestions for an International Treaty Regime Governing Geoengineering” by Vishal Garg
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“Deeper Than a Paper Cut: Is It Possible to Regulate Three-Dimensionally Printed Weapons or Will Federal Gun Laws Be Obsolete Before the Ink Has Dried?” by Caitlyn R. McCutcheon
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“Are You Really Going to Eat That? Product Tracing, the Food Safety Modernization Act, and the Promise of RFID” by Colin Mieling
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“Taking Matters into Its Own Hands: Why Congress Should Pass Legislation to Allow the FTC to Regulate Consumer Online Privacy with a ‘Do Not Track’ Mechanism” by Angelica Nizio
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Recent Development

“Recent Developments in Patenting Medical Biotechnology: Myriad Genetics and the Affordable Care Act as Steps Towards Greater Patient Access” by Libby Deshaies
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