Tag: Fourth Amendment

Barcoding Bodies: RFID Technology and the Perils of E-Carceration

Science & Technology One comment

By: Jackson Samples Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment. Download Full Article (PDF) Cite: 23 Duke L. & Tech. Rev. 89

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These Walls Can Talk! Securing Digital Privacy in the Smart Home Under the Fourth Amendment

Science & Technology

By: Stefan Ducich Privacy law in the United States has not kept pace with the realities of technological development, nor the growing reliance on the Internet of Things (IoT). As of now, the law has not adequately secured the “smart” home from intrusion by the state, and the Supreme Court further eroded digital privacy by conflating the common law concepts of trespass and exclusion in United States v. Jones. This article argues that the Court must correct this misstep by explicitly recognizing the method by which the Founding Fathers sought to “secure” houses and effects under the Fourth Amendment. Namely, the Court must reject its overly narrow trespass approach in lieu of the more appropriate right to exclude. This will better account for twenty-first century surveillance capabilities and properly constrain the state. Moreover, an exclusion framework will bolster the reasonable expectation of digital privacy by presuming an objective unreasonableness in any warrantless penetration by the state into the smart home. Download Full Article (PDF) Cite: 16 Duke L. & Tech. Rev. 278

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Riley v. California and the Stickiness Principle

Science & Technology, Uncategorized

By: Steven I. Friedland In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question of whether cell phone searches incident to a lawful arrest were constitutional. The Court, which had clung to pre-digital concepts such as physical trespass well into the twenty-first century, appeared ready to explore how technology is reshaping historically understood conceptions of privacy. From a broader perspective, the case offers an initial step in reconciling pre-digital rules based on outdated spatial conceptions of physical things with the changing realities of a technology driven world. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 121

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