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New law review article: The Missed Opportunity of United States v. Jones--Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World by Mary Leary on SSRN. Abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy.

Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections.

This article identifies this assault on the expectation of privacy due to “corporate conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these corporate induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced.

This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.

New law review article: A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence by David C. Gray on SSRN and forthcoming in American Criminal Law Review. Abstract:

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. That conceptual deficit has produced an opaque body of doctrine that is often incoherent and always speculative and unpredictable. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

The man who purchased two semi-automatic assault rifles found at the scene of the fatal December 2010 shooting of a U.S. Border Patrol agent just north of the Arizona-Mexico border pleaded guilty Thursday to two felony charges in the federal government's botched Fast and Furious gun-smuggling investigation.

Jaime Avila Jr. ...

HELENA, MONT. | Best-selling "Three Cups of Tea" author Greg Mortenson mismanaged the nonprofit organization he co-founded to build schools in Pakistan and Afghanistan and spent charity money on personal items, family vacations and millions on charter flights, according to an investigative report released Thursday.

Mr. Mortenson's control of the ...

DETROIT — A federal judge in Michigan on Thursday cleared the way for Koran-burning pastor Terry Jones to lead a protest in front of the nation's largest mosque this weekend, saying efforts by officials in Dearborn, Mich., to essentially force organizers to guarantee the rally would be peaceful were unconstitutional.

BELLEFONTE, Pa. — Former Penn State assistant football coach Jerry Sandusky's lawyer said after a short pretrial hearing Thursday that he expected the presiding judge to soon dismiss defense motions to have the child sexual abuse charges thrown out, but he hoped he would let them be refiled after more ...

International arms dealer Viktor Bout, the so-called "Merchant of Death," was sentenced Thursday in federal court in New York to 25 years in prison following his conviction in a multimillion-dollar conspiracy to finance a fleet of aircraft to arm bloody conflicts and support terrorists worldwide.

U.S. District Judge Shira Scheindlin ...

God may once again bless the USA at Stall Brook Elementary.

The Bellingham, Mass., school, under fire for changing the lyrics of Lee Greenwood's "God Bless the USA" to "We Love the USA" for an upcoming fourth-grade concert, reversed course Thursday after drawing a backlash from parents and hints of ...

OHIO

School OKs gay student's T-shirt for 1 day only

CINCINNATI | A gay student suing his Ohio high school for prohibiting him from wearing a T-shirt designed to urge tolerance will be allowed to wear the shirt for one day.

Maverick Couch's lawsuit charges that Waynesville High School and ...

Pro-life groups often insist that they don't get a fair shake in the media, and now the Vitae Foundation has confirmation.

Both the Corporation for Public Broadcasting and the Washington News Council have sided with the foundation in its fairness complaint against Seattle's National Public Radio station, KUOW-FM, which ran ...

SPRINGFIELD, Ill. (AP) — Gun-rights advocates scored a victory Thursday when the Illinois Supreme Court decided to let a challenge to Cook County's assault-weapons ban proceed, even though two lower courts had tossed it out.

The high court, in a unanimous ruling, said it wants the trial court to hear ...

HARTFORD, Conn. (AP) — The state Senate voted Thursday to abolish the death penalty in Connecticut, a state that has executed only one prisoner in a half-century and is now on track to join a national trend away from capital punishment.

In an early morning vote that followed more than 10 ...

KODIAK, Alaska (AP) — The U.S. Coast Guard plans to use cannon fire to sink a derelict Japanese ship dislodged by last year's massive tsunami.

The shrimping vessel, which has no lights or communications systems, was floating about 195 miles south of Sitka in the Gulf of Alaska on Thursday ...

MORGANTOWN, W.Va. (AP) — Gov. Earl Ray Tomblin urged West Virginians to observe a moment of silence Thursday, starting at 3:01 p.m., to mark the second anniversary of the Upper Big Branch mine disaster and the deaths of 29 men.

The powerful April 5, 2010, explosion at the former Massey ...

BELLEFONTE, Pa. (AP) — The judge overseeing Jerry Sandusky's child sex-abuse case says an ongoing secret grand jury investigation into the former Penn State assistant football coach is complicating preparations for his trial.

In a brief pretrial hearing Thursday, Judge John Cleland said he wouldn't issue a decision on a ...