Law Review Articles
First Amendment Sentence Mitigation:
Beyond a Public Accountability Defense for Whistleblowers
Harvard National Security Journal (2020)
This Article argues that the appropriate place to consider public accountability factors in whistleblower cases is at sentencing. Courts can take, and have taken, substantive First Amendment rights into consideration at sentencing as mitigating factors. Examining historical sentencing practices in fugitive slave rescue and conscientious objector cases, this Article demonstrates to courts the historical validity of taking substantive constitutional interests into account at sentencing—that the constitution does not evaporate with a verdict. It also argues that courts should implement sentence mitigation on the basis of First Amendment interests in whistleblower cases, providing an immediate pragmatic solution and potentially prompting a more sustainable long-term approach to government whistleblowers.
Local Police Surveillance and the Administrative Fourth Amendment
Santa Clara High Technology Journal (2020)
Police surveillance has become a problem of governance, not a problem of procedure. The introduction and use of sophisticated surveillance technologies, once reserved for elite central governments, in local policing has raised questions about the sufficiency of existing approaches. This Article argues that the proper response to use of sophisticated investigative technologies by local police is local administrative governance by city councils. Having an external administrative body make rules about police technology brings with it an ability to consider expanded concerns about technology, timeliness, and an ability to regulate interactions with private actors. In addition to offering a set of legal arguments, this paper contains two novel descriptive contributions. First, where other articles have focused on the legal risks of certain technologies, this Article compiles a comprehensive look at a range of police technologies and systematically analyzes the risks they pose both legally and at the local level. Second, this Article offers the first comprehensive assessment of the current efforts localities have made towards implementing this kind of local administrative governance for police technology.
Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis
I/S: A Journal of Law and Policy for the Information Society (2015)
(now: Ohio State Technology Law Journal) [available here]
The global trade in zero-day vulnerabilities – software flaws unknown to the maker and public – constitutes a serious cybersecurity problem. Governments use zero days for military, intelligence, and law enforcement cyber operations, and criminal organizations use them to steal information and disrupt systems. The zero-day trade is global and lucrative, with the U.S. and other governments participating as buyers. Cybersecurity experts worry this trade enables governments, non-state actors, and criminals to gain damaging capabilities, as well as undermining U.S. and global cybersecurity. These problems are generating a nascent, but growing, policy debate about the need to regulate the zero-day trade. This Article contributes to this debate by analyzing U.S. domestic and international options for controlling the zero-day trade. If controlling the trade is a desired aim, without U.S. leadership and coordinated international action, realpolitik will prevail.
Works in Progress
Finding Privacy in the Penumbra of Property:
Towards a Fourth Amendment “Situational” Right to Exclude
Fourth Amendment protections should attach when a person has a limited kind of property right, a situational right to exclude, in an item to be searched. The Supreme Court has been moving away from the Katz reasonable privacy test and back towards a property-based set of Fourth Amendment rights. This trend raises concerns that Fourth Amendment jurisprudence will also revert to its less privacy-protective pre-Katz state. This Article argues that a privacy-protective, property-based conception of the Fourth Amendment is both possible and desirable.
Property rights, for Fourth Amendment purposes, should be conceived of as fine-grained and separable, as they are in other areas of the law. Building primarily on the Court’s recent rental car jurisprudence, this article shows that the court already has started to grant Fourth Amendment protections on the basis of “partial” property rights. For instance, in Byrd, the Court recognized that a non-authorized driver had a right to exclude in a rental car. The Court granted Fourth Amendment protections on this basis despite the fact that the driver lacked any contractual rights in the car and solely on that driver’s lawful possession and control—although not exclusive—of the car.
This trend paves the way for recognizing Fourth Amendment protections on the basis of a situational right to exclude: the legal right to exclude certain actors from a certain item in certain circumstances. In other words, the right to exclude is not an all-or-nothing proposition destroyed by granting access to a single third party. The right to exclude is often considered the most essential stick in the property bundle of sticks; but property rights can and do vest even when this right is partially curtailed. This conception of property rights is especially helpful in the data context, because it offers a way around the third-party doctrine. Furthermore, this approach offers a more complete explanatory foundation for granting Fourth Amendment rights, compared to the black-box nature of the Katz reasonableness test. Conceiving of a Fourth Amendment rights in limited property terms—as having a situational right to exclude—offers a privacy-protective way to insulate items from warrantless searches without succumbing to the narrowness of a full property approach to data or the case-by-case approach that a reasonable expectation of privacy approach requires.
Silencing the Town Crier:
Municipal First Amendment Retaliation Claims against the Federal Government
This Article argues that municipalities enjoy First Amendment protections against federal retaliation for municipal political speech, specifically as embodied in affirmative lawsuits. The first section argues that municipal litigation constitutes political speech. The second section deals with the more contested question of whether a municipal speaker of such speech qualifies for First Amendment coverage. The Article makes two arguments for such coverage: a city should be able to claim First Amendment rights as a collective speaker on behalf of its rights-endowed individual citizens, and that municipal speech rights play an important structural role within the federalist system.
Book Chapters and White Papers
Cross-Border Data Access Reform: A Primer on the Proposed U.S.-U.K. Agreement
Berkman Klein Center Research Publication 2017-7 [available here]
Cross-border data access reform may be on the legislative agenda in late 2017, with recent House and Senate judiciary committee hearings revisiting the topic. In light of this increasing interest, we thought it would be helpful to provide a brief primer on how cross-border data access requests currently work, options for reform, and major challenges to reform ahead. This document presents a short, high-level background review of the debate as it currently stands, particularly focusing on the DOJ’s 2016 proposal for reform.
“Government Acquisition and Use of Zero-Day Software Vulnerabilities” in Cyberinsecurity: Navigating the Perils of the Next Information Age
Rowman & Littlefield (2016)
In this volume, academics, practitioners, and former service members come together to highlight sixteen pressing contemporary cybersecurity challenges and to offer recommendations for the future. This chapter expands on an earlier paper (listed above) with more focus on details of U.S. domestic law enforcement use and options for U.S. regulation.