Search

The vast volumes of our consumer data that companies retain to target advertising, train artificial intelligence products, and predict our preferences can also help solve crimes and identify unknown perpetrators. Two powerful strategies for cracking cases involving unknown perpetrators, keyword warrants and geofence warrants, direct businesses to disclose devices that performed incriminating keyword searches or that were present during a crime. The new digital search strategies drawing on corporately held big data are sparking conflicts and confusion in the courts because a suspect is not named, spurring originalism-influenced analogies to 1700s-era general warrants. Evaluating digital searches through the lens of a time before electric power existed-much less electronic data-makes no sense but remains alluring because of Romantic Luddism, a tradition of anxiety over technological change and nostalgia for the past. Advancing beyond Romantic Luddism in Fourth Amendment interpretation, this Article offers a new analytical lens for big data search strategies that are evolving with technology. How crimes are perpetrated in the digital age has evolved. Our concept of the Fourth Amendment's requirements, including what constitutes probable cause and particularity in big data search warrants, must evolve as well. This Article frames the concepts of digital probable cause and collateral impact to address conflicts in the courts over big data searches using keyword and geofence warrants to identify unknown perpetrators. The Article draws on the analogy of John Doe DNA warrants to explain how advances in science and technology can give new grounds for probable cause and particularity when a perpetrator's identity is unknown. The Article also frames the concepts of collateral impact and collateral harm to evaluate overbreadth concerns and empathy disparities regarding the impact of searches on persons not involved with the crime. The Article's proposal enables controlled use Of big data search strategies such as geofence and keyword warrants while forestalling abuses, such as mass surveillance of political protesters or hunting for abortion seekers. [ABSTRACT FROM AUTHOR]

There are two cultural revolutions in recording the police. From the vantage of police departments, there is the rapidly spreading uptake of police-worn body cameras. On the public side, community members are increasingly using their cell phone cameras to record the police. Together, these dual recording revolutions are generating important new questions and possibilities regarding the balance of power in producing proof and illuminating contested encounters. This Essay is about how pooling police body camera and public videos can address three emerging challenges in the police recording revolution. The first challenge is the controversy over failures to record contested encounters by officers wearing body cameras. The second is the perceptual biases and limitations of body-camera video. The third is nondisclosure and policy limits on use of body-camera video to detect violations. This Essay argues that pooling public and police videos serves an important function in addition to offering evidence to solve crime. Including public videos in the official record democratizes proof so that members of the public can help shape and contest the official story. Perspective matters. A story can shift powerfully depending on the vantage point from which it is perceived and filmed--and depending on whether it is recorded at all. In addition to enhancing investigations, pooling public videos with police reports and recordings can better inform prosecutorial, defense, and judicial decision-making as well as police regulation., INTRODUCTION 1640 I. DUAL CULTURAL REVOLUTIONS IN RECORDING 1646 THE POLICE A. From Arrest to Protest: When the Public Records the 1647 Police B. Radical Transparency: The Rapid Spread of [...]

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses--both proprietary and secluded from scrutiny. Controversies [...]

2. State Firearms Nullification Laws Firearms regulation is another area rife with culture wars over regulation and a flowering of rebellious state legislation. (169) The federal response to such state [...]

How to frame privacy penalties to protect our personal information is an important question as demands for legislation and proposals proliferate. The predominant assumption in calls for a comprehensive consumer privacy regime is that regulation and penalties arm the consumer David against Goliath businesses. Missing in the focus on powerful companies is attention to the potential harms of expanding privacy penalties for small-fry individuals and entities, especially from disfavored or marginalized groups. This Article is the first to illuminate the regressive risks of privacy penalties, showing how broad privacy penalties can become tools for harassment of small businesses and individuals with limited resources to defend. Drawing on original research collecting and coding 571 privacy penalty decisions from 20 nations under the world's toughest privacy rights and penalties regime, the European Union's General Data Privacy Regulation ("GDPR"), this Article offers cautionary lessons. Illuminating a shadow jurisprudence of small targets, the Article shows how overly broad, amorphously worded privacy penalty provisions can be used to target disfavored groups and create weapons for the disgruntled, such as punishing people who record the police or in disputes between neighbors. The Article offers three major principles to protect against targeting harms. First, the Article warns against vague broad language in framing penalty-backed obligations to curb discretion to harass and target disfavored groups. Second, the Article argues for a regulatory agency model with an explicit advisory role rather than a predominantly quasiprosecutorial role. Third, the Article proposes safe harbors for individuals and small businesses and a complementary understanding that even seemingly minor penalties can carry major collateral consequences for the vulnerable. [ABSTRACT FROM AUTHOR]

Abstract: Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any [...]

Brickwood Contractors, Inc. v. United States, 49 Fed. Cl. 738 (2001). Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. (1) Brickwood [...]

The information that we reveal from interactions online and with electronic devices has massive value--for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean. This Article is the first to frame a right of the public to benefit from our consumer big data. Drawing on insights from property theory, regulatory advances, and open innovation, the Article introduces a model that permits controlled access and the use of big data for public interest purposes while protecting against privacy harms, among others. I propose defining a right of access to pooled personal data for public purposes, with sensitive information safeguarded by a controlled-access procedure akin to that used by institutional review boards in medical research today. To encourage companies to voluntarily share data for public interest purposes, the Article also proposes regulatory sandboxes and safe harbors akin to those successfully deployed in other domains, such as antitrust, financial technology, and intellectual property law. [ABSTRACT FROM AUTHOR]

Investigations of police departments by the U.S. Department of Justice spurred the spread of early intervention systems that use data to detect officers at elevated risk of problematic conduct. These systems of internal self-surveillance remain even when consent decrees expire and federal investigators turn to other tasks--or pull back during Presidential regime changes. Such automated technologies of harm detection and prevention that outlast political upheaval are alluring--but they are only as effective as the data and criteria on which they rely to detect and prevent problems. Current systems largely are dependent on reported events and use simplistic thresholds based on intuition to trigger red flags. To improve the harm prevention power and build a smarter system, this Article proposes using a rich and growing source of data not traditionally used in early intervention systems--audiovisual data from police-worn body cameras and community-member cell phone cameras. The Article also presents findings from the coding and collection of 213 body camera policies regarding whether a major source of audiovisual data--police-worn body camera videos--may be used to monitor and evaluate officers. While there are policy silences, gaps, and splits, the Article concludes that the majority of departments have the opportunity to use the rapidly accumulating trove of audiovisual data to create smarter early intervention systems. [ABSTRACT FROM AUTHOR]

A movement toward police regulation by recording is sweeping the nation. Responding to calls for accountability, transparency and better evidence, departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important, growing area of controversy. Based on the collection and coding of police department body camera policies, this Article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions specifying consequences for not recording as required-and several have protections against discipline. The Article discusses how the labor-management structure of departments and the individual-blame nature of disciplinary processes render internal departmental enforcement of recording rules challenging. As the central framers of conduct rules for police, and as gatekeepers of evidence, courts have an important role to play in addressing the missing video problem. The challenge is how to frame remedies that avoid judicial inquiry deterrence: a reluctance to address missing video issues because it would entail messy and costly collateral mini-trials on whether recordings are missing for legitimate reasons or due to officer malfeasance. This Article proposes three judicial pretrial remedies that proceed from a more administrable evidentiary fairness perspective: exclusion of partial recordings, favorable inferences, and pattern and practice detection harnessing systemic facts accumulated by courts in criminal cases. [ABSTRACT FROM AUTHOR]

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story--or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception. Now a revolution is coming. Across the nation, police departments are deploying body cameras. Analyzing body camera policies from police departments across the nation, the article reveals an unfolding future where much of the main staple events of criminal procedure law will be recorded. Much of the current focus is on how body cameras will impact policing and public opinion. Yet there is another important audience for body camera footage--the courts that forge constitutional criminal procedure, the primary conduct rules for police. This article explores what the coming power to replay a wider array of police enforcement actions than ever before means for judicial review and criminal procedure law. The body camera revolution means an evidentiary revolution for courts, transforming the traditional reliance on reports and testimony and filling in gaps in a domain where defendants are often silent. The article proposes rules of judicial review to cultivate regular use of the audiovisual record in criminal procedure cases and discourage gaps and omissions due to selective recording. The article also offers rules of restraint against the seductive power of video to seem to depict the unmediated truth. Camera perspective can subtly shape judgments. Personal worldviews influence image interpretation. And there is often a difference between the legally relevant truth and the depiction captured on video. Care must be taken therefore to apply the proper perceptual yardsticks and reserve interpretive questions for the appropriate fact-finders. [ABSTRACT FROM AUTHOR]

When you call the police for help--or someone calls the police on you--do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives--after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure. This Article sheds light on the balances being struck in state laws and in the body camera policies of police departments serving the 100 largest cities in the nation. The evaluation illuminates two emerging areas of concern--the enactment of blanket or overbroad exemptions of body camera footage from public disclosure, and silence on victim and witness protection in many policies. The Article offers two proposals to address the challenges. First, the Article argues for legal safe harbors to foster the development of new redaction technologies to automate the removal of private details rather than exempting body camera video from disclosure. Blanket or broad exemptions from public disclosure disable much of the promised benefits of the body camera revolution. Nondisclosure also destroys the incentive to develop technology to reconcile the important values of transparency and privacy. Second, the Article argues for giving victims and witnesses control over whether officers may record them, rather than putting the burden on victims and witnesses to request that recording cease. This approach better protects against the perverse unintended consequence of deterring victims from seeking help and witnesses from coming forward, and reduces the risk of inflicting further privacy harms from seeking justice. [ABSTRACT FROM AUTHOR]

Deaths and protests in places where predominantly-white police forces patrol majority-black communities have focused the national spotlight on concerns over unrepresentative police forces. Responding to the controversy, mayors and police chiefs in cities across the nation are announcing goals to hire more minority officers. But does police diversification actually reduce the risk of violence in police encounters? This Article addresses this timely question of legal and practical import to communities seeking to prevent violence and pursue policies that survive constitutional scrutiny. Drawing on restricted-access Centers for Disease Control data and social-psychological insights, this Article shows that there is a good basis to hypothesize that police diversification has violence- prevention benefits, but further study is needed. This Article shows that as the nation's police forces have grown more diverse over the decades, the large racial disparity in the risk of deaths due to law enforcement has narrowed somewhat. Smaller-scale studies evaluating whether police diversification reduces the risk of deaths due to law enforcement have yielded mixed and null results. This Article argues that the failure to detect a significant effect is not fatal; the mixed and null findings are due to data limitations that obscure many cases of relevant harm. The quantitative data available from official sources is not sufficient to draw conclusions. This Article is the first to propose the innovation of drawing on hospitalization data to address the oft-lamented lack of information on nonfatal injuries inflicted by police, opening a fresh avenue to investigate this important hidden issue. [ABSTRACT FROM AUTHOR]

The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking the execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. This Article is about the unintended consequences of the supply-side attack strategy and how harm reduction is better served by challenging the lack of notice and adversarial testing regarding new drug protocols rather than outing and attacking the last remaining licensed suppliers. While execution drug supplier confidentiality laws are often conflated with concealment of the method of execution, the Article argues it is important to distinguish the two. The success--and downsides--of the drug supplier outing strategy illustrates the legitimate harm prevention rationale behind execution drug supplier confidentiality laws. Confidentiality serves the important interest of safeguarding remaining licensed drug sources and reducing the need to resort to questionable backroom sources abroad or old methods of execution such as firing squads. In contrast, eleventh-hour drug substitutions heighten the risk of unintended suffering because the death cocktail protocol has not been subject to sufficient adversarial testing, much less scientific evaluation. For those concerned about reducing harm, it is counterproductive to attack compounding pharmacies licensed as competent to produce drugs for the public. Rather the focus should be on sufficient notice regarding the lethal injection protocol to evaluate and challenge changes in cocktail combinations, which pose a far greater risk of harm. [ABSTRACT FROM AUTHOR]

Mass shootings at Navy Yard, Newtown, Aurora, and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary-school children and six adults. Legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines. While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides, and why do the law's current screens miss them? This Article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens. Presenting data on the most prevalent place of shooting, the victim-shooter relationship, and the shooter's prior history, this Article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses "ordinary" violence. By ordinary violence, this Article means violence that is often viewed as mundane, such as altercations between family members, friends, and intimates in the home. Many perpetrators of firearms homicide have a history of such prior events--yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions. Based on these findings, the Article discusses how executive action steering scene-of-assault procedure and discretion in dealing with ordinary violence can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet that besets new gun laws. [ABSTRACT FROM AUTHOR]

The article discusses changing sexual cultures, public health policies, and a call for the decentralization of the surveillance of sexually-transmitted diseases (STDs) as of January 2012, focusing on an analysis of the public health laws which regulate STDs and the control of communicable diseases such as the human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS). Statistical research from the U.S. Centers for Disease Control on STD infections is also addressed.

The article discusses the changes in sexual and social norms which lead to a public health challenge for law and policy. It provides informational interventions beyond the costly regulatory regimes of criminal and tort law and the sexually transmitted disease (STD) observing states. It proposes various ways for verifying STD status and preventative privacy-piercing approach can reduce the spreading of STD.

Though unauthorized migration into the United States has diminished substantially since 2007, anti-"illegal alien" state and local laws and furor are flaring again. While one of the biggest worries regarding such "anti-alien" laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the "Other"—the foreign enemy within—in a time of economic and political turmoil. The approach of cutting back overreaching statutes using alternate frames of analysis, such as preemption rationales, to vindicate prior national commitments to balancing antidiscrimination with enforcement can be constructively deployed to fill gaps and blind spots in antidiscrimination doctrine, and to mitigate polarization by making shared interests and social cohesiveness rather than racial divergence of interests salient. Equality norms can be framed and vindicated in a more palatable, legally tenable form, and tied to other interests to appeal more widely and ameliorate estrangement in a polarized polity. Legislation is invalidated not to "accommodate" the minorities against the majority will, but to preserve values such as the federal balance, or guard against arbitrary governmental power. The approach is also a technique of bridge-building across worldviews to appeal to hierarchs, who tend to be conservative supporters of tough legislation, as well as egalitarians, who value equality more highly. To be constructive, however, these alternate approaches must enfold antidiscrimination concerns and norms into the analysis rather than altogether elide the concerns. Moreover, in crafting decisions, courts have an important role to play in counteracting rather than amplifying the spread of conflation and misperception that fuel fierce friend-enemy politics. [ABSTRACT FROM AUTHOR]