Law Review Articles
First Amendment Sentence Mitigation:
Beyond a Public Accountability Defense for Whistleblowers
Harvard National Security Journal (2020)
This paper 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 paper 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.
Trickle-Down Surveillance Tech and the Administrative Fourth Amendment
Santa Clara High Technology Journal (2020)(Forthcoming)
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 paper 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 papers have focused on the legal risks of certain technologies, this paper 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 paper 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 paper 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
Situational Data Right to Exclude:
A Privacy-Protective Return to a Property-Based Fourth Amendment
The reasonable expectation of privacy test promised a way to expand Fourth Amendment rights beyond the Court’s traditional physical trespass approach. This expansion has been welcomed by privacy advocates as a more flexible test suited to changing circumstances, including the growing centrality of digital data. But the Court has seemed hesitant to fully embrace the Katz test. Thus, conceptualizing data in terms of property interests might offer a pragmatic path towards a more privacy-protective Fourth Amendment jurisprudence. Courts should conceive of individuals as having a situational right to exclude with relation to their data for Fourth Amendment purposes. Individuals should be recognized as having control over who has access to their data and for what purpose. Allowing one entity—such as a service provider—to access data for one purpose should not automatically invalidate an individual’s exclusion interests with regards to other actors and situations. This view offers a more sustainable approach than re-adjudicating whether an individual has an expectation of privacy with regards to each new type of data.
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.