U.S. Legal Research

Law Review Articles

Warranted Exclusion: A Case for a Fourth Amendment Built on a Right to Exclude
SMU Law Review (2023)

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. And the leading competitor, what I call the “maximalist” property approach, risks troublingly narrow results. 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.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information about that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.

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.

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.  

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.

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.

Book Chapters

“Infrastructure, Law, and Cyber Stability: An African Case Study”
in Cyberspace and Instability (Chesney et al. 2023)

Cyber stability for African countries looks different from cyber stability at the global level. Many of the ways that the dominant literature defines cyber stability do not apply to African states. Dominant views of cyber stability tend to center technological and regulatory openness, interoperability, and internationality. For dominant states, these aspects of global integration cultivate stability. For African countries, global integration can bring instability through dependence, and attaining cyber stability can require, at least initially, actions that the global community might view as destabilizing. This chapter challenges dominant conceptions of cyber stability from a subaltern perspective, drawing on my research of African Union member states investments in both cyber infrastructure and cyber law.

“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.

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