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Consent Searches as Police Violence
Get PDFHenderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context of Fourth Amendment searches premised on consent, they stop short of calling for a total ban on consent searches. Instead, they seek to abolish the Fourth Amendment consent doctrine except in various “emergency” circumstances.
This response makes four points. The first two address the ubiquity of racialized police violence in America and how this fact (of both present and history) may impact how to view the proposal in Sheep’s Attire. Particularly when juxtaposed against the legacy and reality of racialized terror, I suggest, police seeking consent to search may amount to act of violence or a very real threat of violence. The third point deals with the emergency-only proposal and raises some doubts about how issues related to the “emergency” doctrine will be adjudicated. The emergency-only consent doctrine is creative, but it seems the proposal does not solve all of the problems it sets out to fix and may necessarily involve unbalanced adjudication about what constitutes an “emergency” that ditching the inquiry about “what constitutes consent” was supposed to fix because it will still be judges making the decisions (and often relying on police narrative versus a criminal defendant to resolve them). Fourth, in risky fashion, I offer a proposal that does not involve abolishing the notion of consent searches categorically, or limiting them to emergency situations. Instead, what if we consider that the issue of voluntariness of any situation where consent is sought should be a question of fact decided by a jury rather than a question of law decided by a judge? In this thought experiment, imagine that the question of whether a search is consensual is not decide by a judge using some invented set of factors but is, instead, placed in the hands of the legal system’s proxy for democratic adjudication—the jury. Thorny questions about how consent is defined wash away. Thorny questions about what constitutes an emergency and other inquires mandated by the Henderson-Krishnamurthi proposal also fade away. In this universe, a pre-trial jury answers the question, plain and simple
Big Data Searches and the Future of Criminal Procedure
Get PDFThis Article proceeds in three parts. Part I illuminates the nostalgic Luddism that influences Fourth Amendment jurisprudence and the challenges posed by evolving technologies to this dominant lens. This Part explains the operation of geofence and keyword warrants and how their power to crack cold cases by unidentified perpetrators both tempt and terrify. The confusion in the courts over the constitutionality of geofence and keyword warrants is emblematic of the larger challenges of the Romantic Luddism in Fourth Amendment originalism that has grown in influence over the decades.
Part II frames and theorizes the concepts of collateral impact and collateral harm to analyze oft-expressed concerns that technological strategies may reveal the data of innocent persons. This Article uses the term collateral impact to refer to how persons who are not the targets of an investigative tactic or who are uninvolved in a crime are affected by the tactic. The collateral impact can entail substantial collateral harm, such as being detained in handcuffs and asked about your immigration status by armed SWAT team members executing a search warrant on a housemate. Collateral harm refers to injuries sustained by persons uninvolved in the crime. Potentially disclosing the presence of an electronic device can entail far less collateral harm compared to other practices repeatedly upheld by the courts, such as detaining all persons onsite during a search warrant execution, or mistakenly searching incorrect persons or homes. This Part illuminates the inequities of technological exceptionalism in overweighing collateral harms of incidental data disclosure compared to the collateral harms that are more likely to impact people with the least resources and power.
Part III frames the concept of digital probable cause to address a major source of confusion in the courts over digital search warrants for unknown and thus unnamed perpetrators. Data-based parameters that give rise to a fair probability that evidence of a crime can be found can support digital probable cause. Parameters could be narrowly drawn geolocation coordinates for geofence warrants or keyword search parameters that only a perpetrator planning or executing the crime might use. This Part draws on analogies from decades of practice and litigation over John Doe warrants, which illustrate how warrants can still be valid even if a perpetrator is unknown if particularity and probable cause arises from other parameters. Finally, this Part offers three principles to protect against abuses of big data search warrants, such as hunting for protesters or abortion seekers
Abdication of Power: Arizona v. Navajo Nation and Judicial Refusal to Enforce the Federal Trust Relationship
Get PDFOver 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise remains unfulfilled because the Navajo people face a severe water access crisis. When the Navajo Nation brought the United States to the Supreme Court to enforce its promise, the Court declined to hold the federal government accountable.
This Comment analyzes the Supreme Court’s decision in Arizona v. Navajo Nation through the lens of the judiciary’s historical approach to the federal trust relationship. The Court has traditionally defined the federal trust relationship as both a source of power and a source of responsibilities—with the Court acting to enforce federal trust obligations to the tribes. Therefore, this Comment argues that the Court’s sudden reliance on principles of separation of powers to avoid broadly defining the federal government’s treaty obligations in this case was the wrong choice. In light of the Court’s ill-advised decision, advocates must get creative to reaffirm federal trust obligations
QUANTIFYING CIVIL RECOVERY IN HYBRID ANTITRUST-DATA PROTECTION HARMS
Get PDFIf digital platforms are found liable on hybrid antitrust-data protection violations, by how much should individual users be compensated? While traditional antitrust literature offers some estimation techniques, these methods were developed mostly around the idea that anti-competitive conduct manifests in supra-competitive prices, lost profits, or lost customers, all of which are easily quantifiable using commercially available evidence.
In digital markets, where antitrust violations are often intertwined with data protection issues, several complications arise. First, unlike transactions covered by traditional treble damage estimation techniques, “data-for-services” dealings are not evidenced by receipts. Second, personal data valuation is highly contextual and prone to volatility, considering that present exchanges are concerned with the insights derived by transacting parties to the data exchange, rather than any intrinsic value to the data. Third, a “reverse synergy” effect is observed in which, whereas a dataset increases in value when aggregated with other information pools, isolating bits of information yield significantly smaller values. Finally, there arises the issue of “efficient deterrence”—antitrust violations ambiguously produce both anti-competitive and pro-competitive effects, so the amount of civil recovery might effectively penalize efficient conduct.
My proposed method consists of benchmarking and trebling the measure of damage. By benchmarking, antitrust plaintiffs can gain a reference of personal data valuations. This can be done through two approaches: (1) willingness-to-accept (“WTA”), and (2) use-case valuation (“UCV”). The WTA approach measures by how much individuals feel they must be compensated to agree to a certain loss of privacy. Meanwhile, UCV is a demand-side approach as it appraises personal data from the perspective of those whose businesses are fueled by such data, e.g., tech platforms and digital services.
Benchmarking the value of personal data is just one element in calculating the damage inflicted through a hybrid antitrust-data protection harm. As to the platform, users are both the suppliers of personal data used for digital services as well as end-consumers of these services. Accordingly, the value of the personal data can be thought of as the price that users pay for platform services or as the cost to the platform of a necessary input. Meanwhile, the digital services are the compensation to users as both suppliers and consumers of the platform services. Given this framework, the computation of damages turns on a comparison of the platform user’s costs and payoffs relative to the but-for scenario where the antitrust violation was not committed
Blurring Boundaries: A Proposed Research Agenda for Ethical, Legal, Social, and Historical Studies at the Intersection of Infectious and Genetic Disease
Get PDFContemporary understanding of the mechanisms of disease increasingly points to examples of “genetic diseases” with an infectious component and of “infectious diseases” with a genetic component. Such blurred boundaries generate ethical, legal, and social issues and highlight historical contexts that must be examined when incorporating host genomic information into the prevention, outbreak control, and treatment of infectious diseases
Founder Worship, Effective Altruism, and Corporate Governance
Get PDFFounders are the heart of any startup. Oftentimes, they are given considerable latitude in managing a company, particularly if they are hailed as a visionary founder in a pathbreaking new industry. Additionally, it is assumed that underpinning their actions is the desire to do good. Unfortunately, sometimes this leads to what we term founder worship where the promise of the founder and the innovation may lead to perverse outcomes because too much control is ceded to the founder and there is a lack (or sometimes complete absence of) corporate governance. When unlimited control is coupled with do gooderism, which in this case was under the pretext of effective altruism, it can lead to disastrous consequences. This phenomenon of founder worship with do gooderism also exposes one of the shortcomings of private ordering. While private ordering in the venture capital setting allows for flexibility in when to implement corporate governance and other legal mechanisms, its very flexibility also may create loopholes for those founders who engage in unethical behavior and, in some cases, criminal behavior. This Article uses Sam Bankman-Fried and FTX as a case study on the dangers of founder worship, which are amplified by the do gooderism of effective altruism, and explores ways to mitigate the effects of such conduct
The Consumer Bundle
Get PDFCan property law have a consumer protection purpose? One of the most important consumer law concerns today is the limited control consumers have over the digital assets and software-embedded products they purchase. Current proposals for reform focus on classifying the transaction as either license or sale and rely mostly on contract law and consumer protection regulation with a few calls for restoring ownership rights. This Article argues that property law can protect consumers by establishing a minimum bundle of rights for consumers: the “consumer’s bundle.” Working with property theory and an analysis of property values, this Article explains the importance of users’ ability to use and alienate digital and technological assets as part of a new property category for consumers. These assets represent a new emerging resource that is currently managed and controlled by manufacturers and platforms. The suggested “consumer bundle” would limit platforms control and protect the rights to use, alienate, and repair