Print | University of Richmond Law Review

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. These officers are able to zoom in from cameras on the high-flying aircraft to identify individuals by their faces and log their activities. Meanwhile, a small group of federal agents review footage from these planes recorded over the course of the last sixth months, creating a precise map of the movements of hundreds of “persons of interest” over that entire period, and cataloging the places they visited and people they interacted with. Using automated identification tools, this process is rapid and simple. The agents will soon move on to a new set of targets, ensuring the government has a complete movement log of a huge portion of the metro area‘s population in time to repeat the process for the next six-month period.

* Senior Counsel, The Constitution Project, Washington, D.C. J.D., 2013, Harvard Law School; B.S., 2010, Washington University in St. Louis.

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.

* 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: 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.

* 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.

“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.

* 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.

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.

* 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.

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.

* 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.

« Older Entries

Next Entries »