Law Review Articles
The New Editors:
Refining First Amendment Protections for Internet Platforms
Notre Dame Journal of Emerging Technologies (2021)
First Amendment editorial privilege, as applied to Internet platforms, is often treated by courts and by platforms themselves as monolithic and equally applicable to all content moderation decisions. The privilege is asserted by all types of platforms, whether search engine or social media, and for all kinds of decisions, whether about content-specific decisions or wholesale moderation policies. In the world of traditional media, editorial privilege is strong but not absolute: courts have allowed it to ebb when editorial judgments are spurred by fraud or profit motives, and, to some degree, when judgments are wholesale rather than individual. Section 230’s broad protections for Internet platforms have largely precluded the development of a robust body of First Amendment law specific to Internet platforms. But, with Section 230 reform a clear priority for Congress, Internet platforms will likely turn to First Amendment defenses to a greater extent in coming years. This Article envisions what it could look like to tailor First Amendment editorial privilege to the multifaceted nature of the Internet landscape, just as courts have done in the offline world.
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
Fourth Amendment doctrine has struggled to meet its two objectives: providing meaningful restraints on government action and a conceptually workable basis for deciding what those restraints are. This doctrine’s evolution has often placed these objectives at odds. The prevailing reasonable expectation of privacy test often gets intuitively good results at the expense of conceptual clarity, while the older, property-based approach offers clearer tests but risks being ascetic in application. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.”
Rethinking Trade Secret Discovery in Criminal Litigation
When a criminal defendant seeks discovery of information that is purportedly a trade secret, courts often apply trade secret discovery analyses imported from the civil context. But courts struggle to adapt an analysis built to reflect these needs of two parties in civil litigation to a process that involves the sometimes drastically different needs of three parties—the defendant, the government, and the private vendor. Specifically, courts are wrongly applying this imported standard in ways that bias the inquiry in favor of the government. Using case studies, this Article takes a docket-level approach to critiquing these processes on conceptual and procedural grounds. This analysis identifies errors that stem from confusion about the legal relationships between parties and from the reordering of the analytical steps of civil tests. Ultimately, trade secret discovery regimes for the criminal context tests should not be a direct translation of civil standards. Concerns about property rights and incentivizing innovation remain in the criminal context, and criminal trade secret discovery regimes should retain some protections for these interests. But, they should diverge from the civil standards in ways that reflect lessened anti-competitive concerns and, most importantly, the principles underpinning criminal litigation—including the greater power and attendant duties of the state.
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.