Fourth Amendment

3 posts

Bend and Snap: Adding Flexibility to the Carpenter Inquiry

Issues Volume 54, Issue 1

By Sherwin Nam

The Supreme Court’s decision in Carpenter v. United States, which requires law enforcement to obtain warrants to access historical cell-site location information, raises new questions about the application of the Fourth Amendment to biometric technologies, such as facial recognition technology (FRT) and voice recognition technology (VRT). While “no single rubric definitively resolves which expectations of privacy are entitled to protection,” this Note seeks to demonstrate that current applications of the rubric offered in Carpenter — considering voluntariness, invasiveness, comprehensiveness, ease of data collection, and retrospectivity — are inadequately flexible. To safeguard the private and intimate details that ongoing “seismic shifts in digital technology” continue to reveal, the courts need a bolder, more robust framework for Fourth Amendment protection. Using FRT and VRT as illustrative examples, this Note argues that analyses of reasonable expectations of privacy involving biometric technologies should recognize the right to anonymity as an integral part of the Carpenter inquiry.

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Resuscitating the Entrapment Defense: A Statutory Approach

Issues Volume 55, Issue 1

By Gage Hodgen

The entrapment defense has existed in American criminal law since the early twentieth century and remains relevant today. As the evolution of technology has enhanced the ability of the police to monitor and engage with potential criminals, sting operations by police have become increasingly commonplace in the investigation (or manufacture) of terrorism, drug, and sex crimes. Consequently, targets of sting operations are often placed in situations in which there is a risk of improper government inducement to commit criminal acts. Despite the increased complexity and frequency of sting operations, however, claims of entrapment by defendants based on the traditional theoretical formulations of the defense are nearly always unsuccessful when raised, and, in many appropriate cases, defendants do not raise entrapment claims at all.

This Note proposes a statutory resuscitation of the entrapment defense to make the defense more suitable to the modern policing system. Part I examines the traditional variants of the entrapment defense as it developed in the common law of the United States as either a subjective test of the predisposition of the defendant or an objective test of the government’s conduct. Part II interrogates the stated purposes of the subjective and objective approaches. Part III explores why the entrapment defense so often fails in situations in which factors suggesting entrapment are present and demonstrates that the entrapment defense today does not serve its foundational purposes. Part IV argues that the underlying rationales of both formulations of the entrapment defense militate in favor of reformulating the defense as a set of statutory rights against certain police behaviors.

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Putting the Blindfolds on Driverless Panopticons

Issues Volume 56, Issue 2

By Alastair Pearson

Autonomous vehicle (AV) deployment will radically reshape the relationship between Americans and their cars. A society which has long prized private car ownership will see riders transition to dramatically cheaper robotaxi services. Cities will regulate AVs in real time, using a sophisticated new regulatory technology called Mobility Data Specification (MDS). The widespread use of AVs owned by impersonal operators and regulated by municipal governments will bring to the fore privacy questions which were more easily ignored when cities were using MDS to regulate more niche modes of transportation like e-scooters. Mass adoption of AVs will elevate the stakes of Fourth Amendment concerns about the collection and analysis of anonymous geolocation data.

This Note aims to answer the important question of whether commercially deployed AVs can constitutionally be subjected to regulatory programs that mirror MDS as currently applied to the regulation of e-scooters. Robust scholarship is emerging about the scope of the concept of inescapability, first introduced in Carpenter v. United States, the Supreme Court’s most meaningful effort to erect guardrails around location data. Scholars are also exploring how the third-party doctrine undermines Fourth Amendment values, and the breadth of modern administrative search doctrine. This Note builds on these critiques and proposals to argue that the Fourth Amendment will impose limits on cities seeking to track real-time location data from AVs. AVs are likely to become inescapable, and the data collected from the public will be uniquely sensitive. If cities want the power to demand real-time data from AVs, they will need to rigorously justify their collection of such data and take concrete steps to anonymize it.

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