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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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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“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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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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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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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.

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Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues

Clay Calvert

Minch Minchin

Kéran Billaud

Kevin Bruckenstein

Tershone Phillips

In March 2015, the Federal Communications Commission (FCC or Commission) proposed fining a Roanoke, Virginia, television station a whopping $325,000 for briefly broadcasting extremely graphic and explicit sexual material, specifically, a video image of a hand stroking an erect penis. The offending content aired for three seconds on WDBJ Channel 7 during a 6:00PM news segment about a former female porn star turned local volunteer rescue squad member.

At first blush, the FCC‘s proposed indecency fine seems like a legal slam dunk. As media attorney Harry Cole wryly writes, “[e]rect penises (and the manipulation thereof) are well outside the range of conventional prime-time acceptability.”

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Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

Bryan Lammon

In Gillespie v. U.S. Steel Corp., the Supreme Court emphasized that the final-judgment rule—the general rule delaying appellate review of a district court decision until the district court reaches a final judgment on the case—must be given a practical rather than technical construction. Gillespie seemed to promise a new approach to federal appellate jurisdiction: a balancing approach that would allow courts of appeals to determine, case-by-case, whether to allow an appeal before a final judgment. But it was not long before the Supreme Court retreated from Gillespie, cabining the decision to its facts, and the Court nowadays adamantly rejects ad hoc balancing in appellate jurisdiction.

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The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART

Deborah Zalesne

As rapidly developing reproductive technologies offer new pathways to parenthood, marriage and parenthood have become increasingly separated, and biology and parenthood no longer go hand in hand. With the advent of Assisted Reproductive Technology (ART), providing alternative methods for people to have children when it is otherwise impossible or infeasible for them to do so naturally, a growing number of parents are not actually biologically related to their children, and even when they are, a growing number of parents have had their children with outside medical assistance.

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The Equal Protection Component of Legislative Generality

Evan C. Zoldan

The goal of achieving equality under law is deeply rooted in American philosophical traditions and constitutional doctrine. And although there is no universally accepted definition of equality, some applications of the principle are uncontroversial; most conceptions of equality bristle at the notion of particularized legislative treatment of named individuals without adequate justification.

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