University of California Hastings College of the Law
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Opt Out or Pipe Down, You Traded Your Data Away: Balancing Computer Crime Prevention, Third-Party Data, and Individual Privacy Rights
No full textThis article explores the complex issue of governments’ access to thirdparty user data without search warrants in the detection, prevention, and prosecution of computer crimes. Topics under analysis include balancing data privacy and public safety, the application of the Fourth Amendment, and seminal court cases such as Riley, Carpenter, and Smith v. Maryland. Cybercrime poses a significant threat to society, businesses, individuals, and governments. While privacy advocates argue for warrant-based access to user data, individuals readily “opt in” and share their data with companies, raising the question of why stricter standards should apply to government use. This article proposes that the government utilize third-party data in computer crime investigations without warrants. The use of artificial intelligence is proposed to sort and analyze third-party data in an ethical and legal manner
Will the New Roberts Court Revive a Formalist Approach to Fourth Amendment Jurisprudence?
No full textWhile all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could form and force his hand, effectively reviving a more formalist approach. Those possibilities, however, do not necessarily signal the end of varied, even unexpected, outcomes for Fourth Amendment cases. Instead, even when one accounts for the new Court’s composition, this research suggests that there is in fact no conservative supermajority that will do away with Fourth Amendment protections because of the complex history and nature of the search and seizure doctrine and each Justice’s distinctive approach to it. Especially as the Court continues to grapple with the intersection of rapid technological change and the third-party doctrine, Robert’s legacy and the future of this new Court may hinge on whether, and how, the Chief Justice adopts a formalist approach to the Fourth Amendment––marking another distinct change in this impactful arena of American jurisprudence
Dirty Secret: The Laundering of Foreign Arbitral Awards
No full textThis Article addresses an undertheorized but important topic: the laundering of foreign arbitral awards. Prevailing parties in foreign arbitrations often obtain judgments confirming their awards at the place of arbitration. Fifty years ago, the Second Circuit established the so-called “parallel entitlements” doctrine, pursuant to which prevailing parties can seek enforcement of the foreign award under federal law, or enforcement of the foreign confirmation judgment under state law, or both.
If an award faces obstacles to enforcement under the New York Convention or the Federal Arbitration Act, the prevailing party can still obtain enforcement of the confirmation judgment under the legal standards that apply to the enforcement of foreign judgments under state law. Although a modest but persuasive body of commentary has criticized this laundering of foreign arbitral awards, observers have treated it as a logical consequence of the parallel entitlements doctrine that will continue until legislatures or courts change the direction of the law.
However, when recently serving as an expert witness in a high-end dispute, the author discovered a line of cases in which U.S. courts have effectively limited the scope of the parallel entitlements doctrine. Specifically, those cases have construed state law as sufficiently broad to permit consideration of certain fundamental lapses in the underlying arbitration when deciding whether to enforce foreign confirmation judgments. Such lapses include arguments that (1) the parties never had a valid arbitration agreement; (2) the arbitrators exceeded the scope of the submission to arbitration; (3) the respondent did not receive adequate notice of the arbitration proceedings; and (4) the tribunal lacked independence or impartiality. This line of cases provides new and meaningful limits on the laundering of foreign arbitral awards
I Spy with My Many Eyes: The Government’s Unbridled Use of Your Surveillance Cameras
No full textSurveillance cameras are increasingly used by the public and law enforcement to prevent and prosecute criminal activity. Individuals and companies can grant law enforcement access to private cameras for both live monitoring feeds and recorded footage, thereby creating a quasi- public network of private cameras. According to the third-party doctrine, the government can access all information from these surveillance cameras without a subpoena or warrant and without infringing upon Fourth Amendment privacy protections. However, as technology advances and the prevalence of surveillance cameras rises, this per se rule fails to account for one’s reasonable expectation of privacy in the public and private spheres.
This Note examines the 2022 San Francisco ordinance, which authorizes the government to use private cameras in a wide variety of circumstances. Specifically, it reviews the ordinance through the mosaic theory, whose proponents champion as a necessary correction to the erosion of Fourth Amendment rights and whose opponents condemn as doctrinally flawed and impractical to administer. To address the theory’s doctrinal shortcomings, this Note reviews the historical development of privacy protections with each new technology considered by the Supreme Court. To demonstrate how the theory may be applied to other technologies, this Note analyzes the circuit court split on whether the warrantless use of pole cameras constitutes a search under the Fourth Amendment. Pole cameras serve as a useful proxy for private cameras under the ordinance.
Ultimately, this Note recommends that the San Francisco ordinance be modified to safeguard an individual’s reasonable expectation of privacy by adding a notice requirement with camera stickers and adjacent signs, requiring police officers to provide camera owners with a brief descriptive justification for each requested video, and limiting the duration of access to live and historical feeds for each event
