U.S. Legal Research

Law Review Articles

First Amendment Sentence Mitigation:
Beyond a Public Accountability Defense for Whistleblowers
Harvard National Security Journal (2020) (Forthcoming)

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.

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.

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 use and options for U.S. regulation.

Works in Progress

Trickle-Down Surveillance Tech and the Administrative Fourth Amendment
Copy available on request

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. Judicial oversight—applying standard Fourth Amendment inquiries—falls short, hampered in scope by the facts of the case and often unaware of or unable to access key technical details of the case. Other alternatives, including legislative guidelines for police technology and local police rulemaking, are lacking in other ways. 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. There are reasons to be worried about this proposal, too. But by drawing on the nascent literature about local administrative governance, this proposal is most likely to be responsive, accountable, and effective in the local context.  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.  


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