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

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.

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* J.D. Candidate 2017, University of Richmond School of Law. B.S., 2012, Utah Valley University. I owe a great debt of gratitude to Professor John G. Douglass for his invaluable feedback over the numerous discussions we had throughout the course of this project, and above all, for inspiring me as a writer and advocate. The quality of this piece is especially credited to phenomenal editors, like Katherine Lehnen, and the exemplary members of the University of Richmond Law Review who have made this project possible.

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

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.

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* J.D. 2018, University of Richmond School of Law. B.A., 2014, American Military University; A.A., 2011, Defense Language Institute. I would like to extend a special thank you to Professor Clark Williams for his invaluable guidance and support. I would also like to thank my mother for giving me the strength to change; without it, I would not be here.

 

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

“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.

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* Attorney and Law Library Professor, City University of New York School of Law. The author previously worked in intelligence while serving in the United States Army. This article underwent prepublication review by the National Security Agency and was cleared for publication. The views expressed are only those of the author.

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

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.

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* Professor of Law and Director of the Center for Terrorism Law, St. Mary‘s University School of Law. B.A., University of Maryland; J.D., University of Alabama School of Law; LL.M., The Judge Advocate General‘s Legal Center and School; LL.M. (1992) and S.J.D. (1994), University of Virginia School of Law. This article was prepared under the auspices of the Center for Terrorism Law located at St. Mary‘s University School of Law, San Antonio, Texas. The author wishes to acknowledge with special thanks the superb efforts of Alec T. Dudley, a second-year law student at St. Mary‘s University School of Law, who supported this article with outstanding research and editing.

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

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.

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* Assistant Federal Public Defender, Richmond, Virginia. J.D., 1990, University of Richmond School of Law. His experience as a practitioner with classified information has included his representation of a Russian expatriate found on an Afghan battlefield in 2009 after a spectacularly unsuccessful Taliban authorized attack on Afghan Border Police and the American forces that responded, who was five years later charged with various violations of American law and tried as a civilian.

In Memoriam: Professor Peter Nash Swisher

In Memoriam: Professor Peter Nash Swisher

Ronald J. Bacigal* 

Professor Peter Nash Swisher, seventy-two, passed away on June 15, 2016, after a year-long battle with multiple myeloma. Pete was born in 1944 in Oxford, England to Margaret Dixon and Dr. George Nash, a Captain in the Royal Army Medical Corps. His father died returning from the War, and his mother eventually remarried Raymond Swisher, an American, and raised her two sons in Wisconsin.

Pete graduated from Amherst College in 1966 with a Bachelor of the Arts in history, and received his Master’s in Education from Stanford in 1967. He joined the U.S. Army in 1968 and served in Vietnam from 1969 to 1970 as a first lieutenant, where he was awarded the Bronze Star and the Vietnam campaign ribbon. Following his military service in 1973, he graduated from the University of California Hastings School of Law with his Juris Doctorate . He spent a year as a legal writing instructor at Indiana University prior to becoming a professor and assistant to the Dean at the University of Richmond, where he taught for more than forty years.

Professor Swisher loved to write. He published dozens of treatises, articles, and books on Virginia family law, torts, and insurance law, earning him a Lifetime Achievement Award from the Family Law Section of the Virginia State Bar. He brought excitement to the classroom by occasionally dressing up as the superhero, “Tortman,” helping him to earn the University of Richmond’s Distinguished Educator Award in 1994 and again in 2002.

Outside the classroom, he consulted or served as an expert witness in over a dozen insurance law cases. He also served for eight years as a reporter for the Virginia Court of Appeals. As a young professor, Pete played rugby (and drank a few beers) with an informal law school team. But his favorite student was certainly Karen Nell Ott whom he married in 1979. Karen and Pete enjoyed thirty-seven years of marriage, which transformed Pete from a California-loving hippie with long hair, into a “Southern Gentleman.” They enjoyed fox hunting at Deep Run Hunt Club, where Pete was known to share his flask of bourbon with other riders. They built their home and barn in Goochland County, and filled it with numerous dogs and horses. The birth of their only daughter, Stephanie, further transformed Pete, and the family spent many wonderful summer vacations together in Bald Head Island, North Carolina. He was very much the proud father when he appeared on stage to hand Stephanie her undergraduate diploma from the University of Richmond.

Sadly, Pete had just begun a two-year phased retirement when the cancer struck. It was everyone’s loss when his illness prevented him from returning to the classroom. Pete will be missed by all who knew him, but he will never be truly gone so long as he is remembered by his family, his colleagues, and his former students, many of whom will always regard him as their favorite teacher.


* Professor of Law, University of Richmond School of Law.

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