Fourth Amendment

Table of ContentsI. Introduction 1506II. Background Law 1510A. The Exclusionary Rule 1510B. The Fruit-of-the-Poisonous-Tree Doctrine 1512C. The Good-Faith Exception 1513III. Problem at Issue 1515A. Circuits That Have Held the Good-Faith Exception Applies 15151. U.S. Court of Appeals for the Sixth Circuit......15152. U.S. Court of Appeals for the Fifth Circuit.......1518B. Circuits That Have Held the Good-Faith Exception Does Not Apply 15231. U.S. Court of Appeals for the Ninth Circuit......15232. U.S. Court of Appeals for the Eleventh Circuit 1525C. Circuits That Have Held Both Ways 15271. U.S. Court of Appeals for the Second Circuit 15272. U.S. Court of Appeals for the Eighth Circuit 1530IV. The Importance of Resolving the Current Circuit Split 1533V. Resolution 1537A. Good-Faith Execution of the Original Search or Seizure 1537B. Different Groups of Officers Conducted the Searches 1540C. Good-Faith Reliance Under Leon 1542D. Counterarguments 1544VI. Conclusion 1547I. IntroductionCo...

The right to privacy has been a longstanding source of contention in the United States. The
Constitution does not make claim to such a right per se. However, the Bill of Rights makes
specific claims to privacy. The ambiguity and necessity for clarification of a right to privacy has
occupied many court circuits. In was ultimately the Supreme Court's 1965 decision in Griswold
v. Connecticut that legitimized the notion of a general right to privacy. The arguments that
preceded the ruling stemmed from interpretations of the First, Third, Fourth, Fifth, Ninth, Tenth
and Fourteenth Amendments to the Constitution. Great care and contextual analysis ought to be
taken when ascertaining the legitimacy of the “right” to privacy as it is today commonly
understood.

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain felony arrestees and the rationale for allowing the practice. Part III assesses the possible analytical approaches to evaluating the constitutionality of Juli’s law and concludes that any approach yields the same result: taking DNA swabs from felony arrestees prior to any conviction is unconstitutional.

This report offers a framework to reason through the very real risks that face recognition use by police creates. It urges Congress and state legislatures to address these risks through commonsense regulation comparable to the Wiretap Act. These reforms must be accompanied by key actions by law enforcement, the National Institute of Standards and Technology (NIST), face recognition companies, and community leaders.

This chapter is a reexamination of the Writs of Assistance speech by James Otis.  In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address.  Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not?  That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts.  It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial.  From there we will reconstruct what Otis said, and in particular consider the authenticity of various texts purported to represent Otis’s words and arguments.  How did the speech text enter the public record, and what were the various forces that contributed to its corruption and Of particular interest is the reliability of the recollections of John Adams made fifty-seven years after the writs of assistance trial.  These recollections have been largely dismissed and discredited by historians and critics as of little value in understanding Otis’s speech.  But, are there reasons why we should place more confidence in Adams?  Can we credit Adams’s memory enough to construct a fuller portrait of the arguments and evidence advanced by Otis?  Finally, what would it mean for our comprehension of Otis’s performance, and his importance in the early patriot movement, if Adams’s recollections were reliable?  With a more complete picture of Otis’s manifesto, what must we conclude about Otis’s influence on colonial opposition to British rule, and about his impact on American legal development in the areas of constitutional protection against unreasonable search, and with regard to the practice of judicial review of legislative action?

This chapter is a reexamination of the Writs of Assistance speech by James Otis.  In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address.  Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not?  That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts.  It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial.  From there we will reconstruct what Otis said, and in particular consider the authenticity of various texts purported to represent Otis’s words and arguments.  How did the speech text enter the public record, and what were the various forces that contributed to its corruption and Of particular interest is the reliability of the recollections of John Adams made fifty-seven years after the writs of assistance trial.  These recollections have been largely dismissed and discredited by historians and critics as of little value in understanding Otis’s speech.  But, are there reasons why we should place more confidence in Adams?  Can we credit Adams’s memory enough to construct a fuller portrait of the arguments and evidence advanced by Otis?  Finally, what would it mean for our comprehension of Otis’s performance, and his importance in the early patriot movement, if Adams’s recollections were reliable?  With a more complete picture of Otis’s manifesto, what must we conclude about Otis’s influence on colonial opposition to British rule, and about his impact on American legal development in the areas of constitutional protection against unreasonable search, and with regard to the practice of judicial review of legislative action?

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the Burger Court’s crowning anti-Miranda achievement: Schneckloth v. Bustamonte. Schneckloth made clear that warning citizens of their constitutional rights had no place outside the context of custodial interrogation.

No article has asked an important and fundamental question about the Schneckloth opinion: what set of circumstances led the Court to conclude that the Fourth Amendment does not require that citizens be informed of their right to refuse consent? This Article argues that Schneckloth is the product of a truly unique confluence of social, political, and judicial circumstances. By properly understanding Schneckloth in its broader historical context, the Article reveals its truly anomalous nature and similarly reveals why the Court should reconsider whether the Fourth Amendment requires officers to inform citizens of their right to refuse consent.

Considerable disagreement persists as to the fourth amendment rights of students within schools.  Particularly, this disagreement regards the extent to which fourth amendment rights possessed by students may frustrate reasonable attempts by educators to maintain the order necessary to preserve an educational environment.

In New Jersey v. T.L.O., the Supreme Court considered an argument advanced by the State of New Jersey that the “pervasive supervision” of school children diminishes the legitimate expectation of privacy a child may have in property “unnecessarily” brought to school.  The Court concluded that the necessity of maintaining security and order in the educational environment was an important interest demanding a measure of flexibility for its effective attainment, yet without sacrificing legitimate privacy interests of the students.  This flexibility is achieved in part by dispensing with the warrant requirement and in part by modifying the level of suspicion required to authorize a search. 

While the T.L.O. majority did not directly hold a student’s expectation of privacy was lower because of his status, the result is substantially the same.  If suspected violation of trivial rules not subverting the educational needs of students may be the basis of a full-blown search, the balance struck by the Court accords privacy rights no weight in such cases. 

Balancing competing interests to achieve reasonableness is often appropriate, but, like all fluid concepts, requires great care to avoid abuse, and whatever its virtue, it is likely to foster inconsistency of application and result.  When measure after measure is removed from one side of the balance without tipping the scales, it can only be because gravity is stayed by an interested hand.

On October 31, 2013—just days before New York City’s mayoral election—three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that—by their own acknowledgment—they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

In this Essay, I focus on a case study of policing in Harlem to make a larger argument regarding privacy rights, the changing landscape of social media as a medium for private assembly, and the perpetuation of discriminatory practices by law enforcement through the use of surveillance. I will contend that surveillance is inextricably entangled with the right to privacy under the Fourth Amendment and the right to assembly under the First Amendment. As a result, legal challenges arise when these new social media conditions link up with prejudicial enforcement of the law. I will also argue that the expanding use of social media prompts a reevaluation of third-party doctrine standards for privacy, and that law enforcement’s monitoring of digital media often specifically targets communities of color. Lastly, I will analyze the long legacy of national surveillance to show that policing in communities of color has a history of systemic violation of rights; from COINTELPRO to the Black Lives Matter movement, First Amendment rights to free speech and assembly and Fourth Amendment rights to privacy have been curtailed by citizens’ fear of a government that is always watching.

The much-discussed Arizona immigration statute, SB 1070, continues an effort – this time at the legislative level – to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice – racial and ethnic profiling premised on “reasonable suspicion” – that has incited the emotions of so many citizens nationwide.

This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic problem that exists because of the collective core holdings from several Supreme Court Fourth Amendment cases. Indeed, law enforcement stops of persons lawfully present in the United States using an “illegal immigrant” profile have existed since the mid-1970s and will remain permissible regardless of the Act’s ultimate fate. Several Supreme Court cases already bestow upon local law enforcement an inordinate amount of discretionary power both on the street and in an automobile. The combination of that power alongside the immigration consequences for a criminal violation provides law enforcement with a level of power and discretion comparable to that bestowed by the Arizona Act. Thus, although citizens may object to its enactment, one thing is clear: SB 1070 does not violate the Fourth Amendment.

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.

This Essay argues that the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance. It is beyond irony that, today, courts consult public expectation to determine private entitlements. This Essays argues that court-administered privacy law doctrine must change if the protection against “unreasonable searches and seizures” is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is.

Across the Web, consumers annually share double the information they did the year before. Use of smartphones, wireless, email, and other technologies is also growing exponentially. The U.S. government and businesses can do things that would have been impossible a few years ago. For example, the National Security Agency (NSA) can intercept and download electronic communications equivalent to the contents of the Library of Congress every six hours. Regulatory inaction and a lack of rules or laws to regulate these practices allows more activity — and potentially invasions of our privacy — to happen faster, and at a larger scale.

Regulatory and government responses have been slow, ineffective, or non-existent. The Supreme Court recently declined to address whether the police can electronically track citizens with a GPS device, and declined to examine whether texting is private, calling two-way pagers an “emerging technology.” Congress has not updated decades-old privacy legislation, and not reacted to what two Senators call “secret interpretations” of the USA PATRIOT Act. Regulatory agencies have sought trivial concessions and non-financial settlements with companies charged with breaking the law. Meanwhile, leaders struggle to grasp technology, internet users struggle to grasp privacy decisions and trade-offs, and election-focused politicians prefer solving problems to preventing them.

In this paper, I review these problems while advancing a framework for determining when a legal or social response to a privacy threat is needed. I also argue that privacy is an important societal value, crucial to growing as individuals and creating relationships. I claim we should prioritize privacy threats of three types: law breaking; if laws are insufficiently enforced; and when laws or practices subvert valued social expectations of privacy. As such, we need better laws and precedents, and better enforcement. I apply this framework and point out specific areas for change.

This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health policy instigated 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. This problematic narrative runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit and polysubstance drug use and not prescription opioid 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 controlled substance, 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 • Visiting Research Scholar, The Petrie-Flom

The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, I suggest that we might be witnessing the twilight of the “physical door” era and the beginning of a “virtual door” era in Fourth Amendment jurisprudence. As recent physical and technological changes present increasingly sophisticated challenges to the distinctions between inside and outside, private and public, and prohibited and accepted visions, the Supreme Court will need to carefully articulate what is worth protecting on the other side of the door.

National security intelligence collection is defined by secrecy and covert data collection. Methods of data collection and processing have developed rapidly along with advances in technology and data encryption. Activities undertaken by national security intelligence organizations such as the CIA and NSA serve to thwart potential threats to the US, warn allies of disruptive international developments, and predict the proximate reality of the international balance of power (both between states and non-state entities). In the US there is an ongoing debate, largely induced by the Edward Snowden NSA leaks of 2013, around the constitutionality of data collection and processing on behalf of both national security intelligence organizations and domestic law enforcement. Gaps in legislative, executive, and judicial oversight regarding the constitutionality of intelligence collection arose post-9/11, when reforms led to the expansion of illiberal and undemocratic intelligence collection in the name of national security. In this paper, I contextualize the debate surrounding the balance between national security and the civil right to privacy in the US, justify reforms based on Fourth Amendment principles, and ask what gaps should be addressed and reformed in the current system of US national security intelligence oversight. Proposed reforms are based on past decisions of the European Court of Human Rights (ECtHR) and the European Court of Justice (EUCJ) on the effectiveness of quasi-judicial (i.e. hybrid) systems of oversight involving both legislative and judicial entities.

This paper introduces a symposium, published in Volume 10, Issue 2 of I/S: A Journal of Law and Policy for the Information Society, entitled, "NSA Surveillance: Security, Privacy, and Civil Liberty," which is available at http://moritzlaw.osu.edu/students/groups/is/volume-102/. The paper traces the history of electronic surveillance law by way of explaining how our laws have evolved to a stage where lawyers could plausibly defend the government’s entitlement to capture and store an immense volume of our telephone and online communications, as well as metadata about both. It goes on to introduce the other papers in the symposium and concludes by arguing the importance of executive branch acquiescence in such statutory limits as Congress may impose on national security surveillance as it affects Americans.

Keywords: NSA, FBI, surveillance, warrantless surveillance, foreign intelligence, fourth amendment

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

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word “effects,” and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory.

In the absence of a coherent approach to “effects,” many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space.

This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another’s possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve.

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This brief essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution.

This article raises some issues about the last years when Obama has successfully tried to destroy our country.  He covered up for executive agencies, he distributed pork to his supporters and generally increased the national debt.  He has attempted to dismantle the military and has taken a hand in downgrading health care - It was a good Try but the PPACA just had too many problems.  He has violated the constitution by using executive orders to replace congress. 
    What we have learned is how to change the way our government functions, and if we can that may at least keep us above water for at least a few years.

Smart home device Amazon Echo, equipped with a voice assistant named Alexa, is a new ear within the home, gathering previously inaccessible sounds of the domestic sphere. Devices such as Echo are constantly 'on' and listening, but whether Echo is always recording is subject to speculation and ambiguity. In this article, I use Echo to theorise sonic surveillance through what I term the 'neoliberal ear'a twenty-first century mode of listening to the world embedded into 'surveillance capitalism.' (Zuboff 2019) I examine the relationship between non-creative recording practices and voice-enabled technology within the context of neoliberalism and its legislative allowances. Conceptualizing Amazon Echo as a complex sonic object that listens to voices in the domestic space in order to gather information on the subjectivity of its users while normalizing the ubiquity of listening in, I investigate the surveillance capabilities of the device, and conduct a sound studies analysis of dispossession and displacement in surveillance capitalism, which I argue are rooted in the split between listening and recording in US copyright law. To discuss Echo's legal ground, I focus on a murder case in which Echo was requested as evidence, considering the specificity of sound within privacy law, and analysing the relationship between Echo and the First and Fourth Amendment of the US Constitution. I view these sonic theorisations of the US legal framework as an initial step to form a neoliberal history of aurality through the conception of the neoliberal ear.

The Fourth Amendment protects us against unreasonable seizures and the Eighth Amendment protects us from cruel and unusual punishment.  Because the use of deadly force is more akin to punishment than seizure, this comment advocates for the importation of the concept of “evolving standards of decency” from Eighth Amendment jurisprudence into the context of use of deadly force incident to an arrest.  As Justice White wrote in Tennessee v. Garner, “notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him.”

A review of use of force policies among police departments serving the top 25 U.S. cities shows that most law enforcement agencies and the communities they serve believe that the use of deadly force against a fleeing violent felon who poses no imminent threat to the officer or the public is unwarranted.  Based on this building national consensus, this comment argues that “evolving standards of decency” preclude the use of deadly force to arrest a fleeing violent felon, a policing practice many courts and state legislatures continue to permit.

This chapter analyzes the privacy, intellectual property, competition policy, and human rights law implications of the rise of Facebook and the threat of a natural monopoly in social networking. Facebook instructed its users that it may provide friend lists and other profile information to third parties, as well as to law enforcement when it thinks public safety is at issue. The service warned users that it may disclose information without permission, but with “notice, such as by telling you about it in [a data use] policy.” In 2009, Facebook announced the settlement of a class-action lawsuit brought on behalf of users of Facebook as of November 2007, which involved privacy violations. Facebook subsequently became embroiled in patent litigation, democratization movements, and the mass surveillance of unsuspecting users, and this chapter briefly surveys its role in these controversies.

The book in which it appears explores what the American Civil Liberties Union calls the ‘third era’ in cyberspace, in which filters "fundamentally alter the architectural structure of the Internet, with significant implications for free speech." Although courts and nongovernmental organizations increasingly insist upon constitutional and other legal guarantees of a freewheeling Internet, multinational corporations compete to produce tools and strategies for making it more predictable. When Google attempted to improve our access to information contained in books and the World Wide Web, copyright litigation began to tie up the process of making content searchable, and resulted in the wrongful removal of access to thousands if not millions of works. Just as the courts were insisting that using trademarks online to criticize their owners is First Amendment-protected speech, corporations and trade associations accelerated their development of ways to make Internet companies liable for their users’ infringing words and actions, potentially circumventing free speech rights. Finally, as social networking and content-sharing sites have proliferated, so have content-detecting tools for finding, flagging, and deleting content that makes one or another corporation or trade association fear for its image or profits.

The book provides a legal history of Internet regulation since the mid-1990s, with a particular focus on efforts by patent, trademark, and copyright owners to compel Internet firms to monitor their online offerings and remove or pay for any violations of the rights of others.

In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, “Would a reasonable citizen feel free to leave?” But when, if ever, can one factor in a pedestrian encounter with police be so inherently coercive that it becomes dispositive? The D.C. and Fourth Circuits explicitly disagree over whether police retention of identification documents constitutes such a factor. The D.C. Circuit has held that such retention is a per se seizure because a citizen cannot feel free to leave when her documents are in police hands. In contrast, the Fourth Circuit rejected this reasoning on the grounds that a citizen can always demand the return of her documents. Contrary to its strong wording, however, the Supreme Court’s rejection of per se rules is not so absolute, and in fact, per se rules do apply where single factors are inherently coercive. Two related areas of Fourth Amendment jurisprudence—traffic stops and voluntariness of consent—demonstrate that courts typically recognize this inherent coercion in police retention of documents. Further, the Fourth Circuit’s approach fails to reflect accurately citizens’ true feelings of restraint in these contexts, as explored in recent empirical studies. Instead, the D.C. Circuit’s approach takes into account the power disparity present where police retain identification. Its per se rule not only clarifies the standard for courts but also creates clear conduct rules and places the burden of monitoring coercive force on the police, who are best equipped to do so.

Because many low-level crimes rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated, they have long been beyond the reach of the vagueness doctrine, even though many may in fact be unconstitutionally vague. Police officers often use these indefinite crimes to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks on the predicate crimes have been rejected. The thinking has been that arresting officers are not expected to anticipate, as a factual matter, that the law will be struck down in the future. As a result, however, many of the low-level offenses used to justify stops and arrests are insulated from judicial review. In this article, I explore that problem and offer a novel solution based on Heien v. North Carolina, 135 S. Ct. 530 (2014). By permitting searches and seizures premised on an officer’s reasonable mistake of law, I argue, Heien opened the door to strictly legal challenges (as opposed to factual challenges) to an officer’s basis for a search or seizure. Under Heien, a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it. That is essentially the same claim made when arguing that a law is unconstitutionally vague. Heien thus creates a backdoor for vagueness challenges in the context of a motion to suppress—solving the insulation problem just described.

A new era of criminal investigation has dawned in which decades-old cold cases are being solved through the forensic use of consumer genetic databases. Law enforcement increasingly harnesses the power of these databases to which individuals have uploaded their DNA in order to explore and understand their genealogy, health, and other highly personal attributes. By surreptitiously accessing these databases, law enforcement can track down criminal targets based on their family relation to any individuals populating the databases. While a growing number of cases have figured prominently in law enforcement's use of these databases-none has demonstrated the power and reach of these databases as much as the Golden State Killer case. As that case demonstrates, alongside this new genetic search capability, new legal and ethical concerns emerge. This article identifies, through the example of the Golden State Killer case, those concerns and proposes the kind of balancing test that a court encountering a legal challenge to the forensic use of direct-to-consumer databases should perform. This challenge has not yet been made, but when it is, the courts will have to balance the potent crime-solving benefits of genetic search technology against the privacy interests of the various affected individuals. In the process, this article also examines applicable legal doctrine from various cases in which courts have grappled with expansive and probing technologies and their threat to reasonable expectations of privacy. Central foci are the courts' mounting discomfort with the long-established third-party doctrine and, correspondingly, their