Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Winthrop Rutherfurd

Across the Confederacy, state judges uniformly claimed jurisdiction to issue habeas writs to confederate conscription officers on behalf of conscripts claiming unlawful detention. State judges based this authority to issue habeas writs to federal officers on the state habeas doctrine, pursuant to which a state court had coequal jurisdiction with federal courts to determine the lawfulness of a habeas petitioner’s detention. Today state habeas doctrine would constitute a gross violation of jurisdictional lines separating federal and state sovereignty; federal courts have exclusive jurisdiction to determine whether a federal prisoner’s detention is lawful. Even during the antebellum period state habeas was constitutionally controversial, resulting in a robust and divided body of antebellum state and federal precedent, and featured in the broader judicial and political disputes over the boundaries of states’ rights.

Read more

The Digital Forevermore

Thomas J. Ridge

We now live in what I call the “digital forevermore.” It was not that long ago that the original computer base data transmission protocol was created simply to facilitate telecommunications between the United States Department of Defense and research universities. While certainly primitive compared to the digital global ecosystem that drives commerce and culture throughout the world today, its core features remain the same. The Internet is an open system based on anonymity. It was never designed to be a secure communication platform. The opportunities and vulnerabilities within this global network, with electrons racing everywhere, much of it with personal information about all of us, are probably beyond our individual comprehension. The ubiquity of the Internet is its strength, and the ubiquity of the Internet is its weakness. And we are all potentially exposed to the potential malignant use of the Internet and the nefarious use of our information that is on it.

Read more

Next Generation Foreign Intelligence Surveillance Law: Renewing 702

William C. Banks

Sometime before the end of 2017, Congress has to decide whether and then on what basis to renew the FISA Amendments Act (“FAA”), a cornerstone authority for foreign intelligence surveillance that sunsets at the end of December 2017. The Privacy and Civil Liberties Oversight Board (“PCLOB”) reported in 2015 that more than one quarter of the National Security Agency (the “NSA”) reports on terrorist activities are derived, in whole or in part, from surveillance authorized by section 702 of the FAA, and that the percentage has increased every year since the enactment of the FAA. Although the bulk warrantless collection of communications content enabled by the FAA was viewed as a scandalous overreach when the Bush Administration‘s then-secret program‘s existence was revealed by the New York Times in December 2005, Congress approved substantially the same program on a temporary basis in 2007. Congress codified it in 2008, extended it in 2012, and is almost certain to renew it next year.

Read more

Preventing an Air Panopticon: A Proposal for Reasonable Legal Restrictions on Aerial Surveillance

Jake Laperruque

Imagine a world where a small plane flies miles above a city, effectively invisible to its inhabitants, but looking down on them. Meanwhile, a series of drones, controlled in a semi-automated pattern by a single operator, hover over the surrounding suburbs. A select group of monitors—no more than a dozen members of the local police force—pinpoint areas of interest in real time, including a large protest, several doctors‘ and lawyers‘ offices, and a mosque.

Read more

COMMENT: The 2016 Amendments to Criminal Rule 41: National Search Warrants to Seize Cyberspace, “Particularly” Speaking

Devin M. Adams

George Orwell‘s dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents—under a single warrant—to “remotely access,” and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device‘s location is obscured through “technological means,” or if agents are investigating computer crimes in five or more districts—regardless of whether the locations of the innumerable search targets are known. Absent clairvoyance, this begs the question of how Fourth Amendment warrant requirements are applied to such a sweeping search.

Read more

COMMENT: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law‘s Need to Evolve

Justin Hill

Law enforcement agencies consistently utilize Cell Site Location Information (“CSLI”) generated by a suspect‘s cell phone to place that suspect at the scene of a crime. Despite the widespread use of these tactics, consensus in the legal realm regarding the Fourth Amendment‘s protection of CSLI remains unrefined. The most recent federal circuit courts to address the issue have each applied the third-party doctrine to find no Fourth Amendment protection of the CSLI information in question.1 However, this apparent uniformity is deceptive. Two of those circuits came to opposite conclusions before the panel opinions were reversed en banc. Each decision has also been met with vociferous opposition within the circuit. Furthermore, the Third Circuit, the first to address the issue, found that the third-party doctrine did not apply at all. Adding fuel to the fire, three state high courts have taken on the issue and found the gathering of at least some forms of CSLI without a search warrant unconstitutional on state grounds. Twelve additional states have statutorily insured privacy protection in at least some forms of CSLI data.

Read more

“I Want My File”: Surveillence Data, Minimization, and Historical Accountability

Douglas Cox

Revelations of secret National Security Agency (:NSA”) intelligence collection programs and other federal and state surveil- lance programs have reignited the debate over the relative value of individual privacy rights and national security. This article argues that in this debate greater attention must be paid to the “right to know” both the individual‘s “right to know” what records the government collects on them and the public’s “right to know” the scope of government surveillance programs—and that federal recordkeeping laws are the appropriate legal mechanism to ensure both long-term government accountability and the historical record.

Read more

Enhancing Cybersecurity in the Private Sector by Means of Civil Liability Lawsuits— The Connie Francis Effect

Jeffrey F. Addicott

Change is an inevitable component of the human experience, both for individuals and the businesses that they operate within society. Sometimes changes in business standards and practices are brought about simply through the normal course of technical “evolution,” but in other cases changes are brought about as the result of new laws. While the Constitution most certainly envisions that laws should emanate from the legislative branch of government, legal mandates rooted in the rich heritage of common law can come from the workings of the judicial branch. Indeed, in the modern world, jurisprudence has been a vital component in shaping—or attempting to shape—normative behavior within society by pronouncing new legal obligations, sometimes even in opposition to the majority will of the people.

Read more

Classified Information Cases on the Ground: Altering the Attorney-Client Relationship

Paul G. Gill

For federal criminal defendants or their counsel first caught up in a case involving classified information, it is easy to find the text of the Classified Information Procedures Act (“CIPA” or “the Act”). The Department of Justice makes available a synopsis of the Act, obviously from the perspective of the prosecution, but generously flavored with case law advancing that perspective. Case law sustaining CIPA against constitutional attack, either facially or as applied, is easy enough to find. Plenty of related case law likewise holds that CIPA’s procedures allow courts to reasonably balance the executive’s right to protect classified information against a criminal accused’s constitutional rights to know and use evidence material to his defense.

Read more

Race and the Law

Cassandra Conover

There was a time the law used the color of our skin for many reasons, to include the notion that our color made us inferior to others. Although white men worded the Fourteenth Amendment in 1868 specifically so newly freed slaves would be protected citizens against unjust state actions, the acceptance of African Americans as 5/5 of a person versus the 3/5 of a person still contained in the Constitution was a bitter pill for many to swallow. The Jim Crow laws of segregation passed in several states from 1890 to 1945. Those laws were enacted “to subordinate blacks as a group to whites and to enforce rules favored by dominant whites.” Those laws were so strongly supported throughout the South.

Read more
Page 1 of 2912345...1020...Last »