- Online Edition
- Print Edition
- SULR Forum
- Donahue Lecture Series
In the United States, “equal justice under law” is at the very forefront of our American justice system. “Equal justice” is meant to guarantee equal access to the justice system. “Equal access to the judicial process is the sin qua non of a just society.” Many Americans, however, do not have any access to the justice system, never mind that of equal access. “Equal justice” has not reached the nation’s indigent, or even many of our moderate-income citizens.
When does the Constitution require procedural safeguards for infringements on First Amendment rights? Surprisingly, this general question has never been answered. The absence of procedural protections for First Amendment rights can yield enormous and substantive implications. One particular investigative tool, the National Security Letter (NSL), is illustrative. Each year, the FBI uses tens of thousands of NSLs to obtain customer “toll billing” information, or transactional records—such as records related to telephone calls, emails, text messages, online forums, tweets, or Facebook messages—from service providers. FBI nondisclosure orders, which usually accompany NSLs, prevent the recipient from speaking about the requests. Since 2001, there have been only a handful of known challenges to NSLs.
This Article argues that the near total absence of procedural safeguards for NSL issuance violates the First Amendment rights of subscribers whose records the FBI obtains.
The United States Supreme Court has long recognized the importance of certain types of speech, and as a result, any law regulating speech of serious societal value must survive strict scrutiny—an extremely rigorous level of constitutional review. At the same time, the Constitution affords other types of speech little to no protection. The Supreme Court’s jurisprudence regarding laws regulating socially important speech is separated into two categories, created to separate the way the law affects speech. If the reviewing court holds the law is content based, meaning the law regulates speech based on the message conveyed, then the law is subject to strict scrutiny. Alternatively, if the law is content neutral, meaning its regulation is not based on the expression itself, then the law is subject to intermediate scrutiny, a lower level of judicial review.
Part II.A of this Note will outline the basic principles of the content- neutrality doctrine and the general implications of a positive determination. Parts II.B and II.C will discuss specific aspects of the Supreme Court’s jurisprudence, namely the secondary effects doctrine and the distinction between speech on public and private property. Part II.D will describe the role of governmental motive in courts’ determinations and the conflicting approaches within court cases. Part II.E will detail the current federal circuit split and the Supreme Court’s responsibility to formulate a more effective rule or test. Finally, Part III will argue that the determination of governmental motive should not be a necessary component of the content-neutrality determination, and that the absolute approach is preferable, particularly when evaluating laws that regulate speech on private property.
In an increasingly digital society, individuals store information online and occupy a social media presence more than ever. Whether through Facebook or other social networking platforms, email accounts, online banking, music providers, or other digital outlets, society occupies and possesses vast digital property. Many types of digital property are replacing—or have already replaced—outdated types of tangible personal property. Further, unlike our friends and family, whose lives must, unfortunately, come to a halt, digital property can exist into perpetuity. Because laws addressing digital property implications upon death cannot keep pace with society’s rapid technological revolution, digital estate law across the United States remains complicated and inconsistent.
This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. Additionally, this Note highlights the importance of deferring to the decedent account holder’s intent when determining whether fiduciary access or control over account content is appropriate after death. This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.
The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. The parties to litigation must be able to review the entire universe of relevant, and potentially relevant, evidence. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.
This Article examines the continuing effort by the drafters of the Federal Rules and the courts to determine how to regulate document destruction in the digital age. Part I of this Article reviews the basic problem of preserving digitized information. Part II considers how the courts traditionally treated breaches of the duty to preserve documents. In Part III, this Article examines how the Federal Rules were first amended to modify the method for imposing sanctions regarding the spoliation of digitized information. Part IV discusses cases in which courts struggled to implement the 2006 amendments to the rules against spoliation consistently. Finally, Part V reviews recently proposed modifications to the 2006 amendments, anticipating some of the problems that may arise with these proposed changes. This Article concludes that the difficulty courts and drafters face in defining culpable destruction is an inevitable consequence of the constantly shifting technological circumstances surrounding the creation and storage of information. Although it may be unsatisfying to live with significant uncertainty about the rules governing spoliation, it may be a necessity, and developing a comprehensive, consistent body of case law may be more a matter of measured evolution than that of brilliant insight or invention.
Standing is a threshold requirement to bring a cause of action, and requires “two strands: Article III standing, which enforces the Constitution’s case-or- controversy requirement, and prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” On March 25, 2014, however, the Supreme Court of the United States abrogated prudential standing for the foreseeable future in Lexmark International, Inc. v. Static Control Components, Inc. The fallout of this hardly publicized, yet unanimous opinion is two-fold. First, federal courts will need to dissect and reconstruct their standing requirements. Second, plaintiffs who could have had their day in court in 2014 may have the court’s doors slammed in their face today. This Article focuses on the impact of the Supreme Court’s ruling in the patent field and demonstrates that the ruling reinforces a party’s right to access the courts in patent infringement suits.
A study of smartphone users found that seventy-nine percent of respondents have their phones on or near them for almost their entire waking day. By 2017, an estimated 67.8% of the U.S. population will use smartphones. The increased adoption of smartphones changed the detail and frequency of how people interact with each other and within their communities, yielding intimate information about the individual user’s relationships. In June 2013, Edward Snowden, a former National Security Agency (NSA) contractor, became notorious for leaking classified information detailing a government program to collect cell phone metadata, also known as transactional information, and location information on virtually every U.S. citizen. Transactional information is data individual users generate when their cell phones interact with outside entities, including businesses, organizations, and websites. Snowden admits that he leaked the information to start a public debate about privacy and the morality of the government collection program. The leaked information, however, may have created a new problem for cell phone service providers in forcing them to afford their subscribers constitutional privacy protections, a role usually reserved to the state.
This Note will examine the history of the state action doctrine and the privacy protections afforded by the Constitution. In Part II, this Note will explore the purpose behind the state action doctrine’s construction. Next, this Note will describe the test for applying the state action doctrine to private conduct and identify exceptions to state action. This Note will then explain cell phone carriers’ technology, infrastructure, and data collection practices. This Note will also discuss the applications of location data and will identify laws governing data collection of individual subscribers. Also in Part II, this Note will consider the privacy protections guaranteed by the Constitution and the doctrinal approaches to analyzing privacy rights. This Note will then argue why the state action doctrine must apply to cell phone carriers. Finally, this Note will argue cell phone subscriber location data deserves constitutional protection under the Fourth Amendment.
In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent’s account. Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider.
To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. Finally, this Note will conclude with considerations of the future of a posthumous privacy right.
Foreign corruption has run rampant for a tremendous amount of time. To directly address this problem, Congress enacted the Foreign Corrupt Practices Act (FCPA) in 1977. Corruption has adverse effects on democratic institutions; it deteriorates public accountability and redirects resources away from national priorities, including public “health, education, and infrastructure.” The impact of corruption abroad can spread rapidly through the global marketplace and ultimately cause chaos domestically. Due to their substantial international impact, foreign bribery and corruption are deemed a threat to U.S. national security. For these reasons, enforcement of the FCPA is a continuing priority for the United States.
This Note will first grapple with the definition of corruption. This Note will then explore the background of the FCPA, as well as its purposes, provisions, and enforcement vehicles. Next, it will discuss corruption as a global problem, investigating other global anticorruption initiatives, which have proven effective. Thereafter, it will provide a brief history of Afghanistan as a war-torn, underdeveloped, corruption-driven country. It will also delve into the legal history of Afghanistan. It will discuss corruption’s adverse effects on the country. Finally, this Note will analyze the possible effectiveness of the FCPA in Afghanistan and how the United States overcomes cultural barriers, in addition to the lack of security, to do its best for a damaged country.
From television commercials and magazine ads to labels and packaging, food and beverage manufacturers spend a significant amount of money advertising their products. Congress passed the Food, Drug, and Cosmetic Act (FDCA) to ensure that food and beverage manufacturers do not mislead or deceive consumers with their advertising. The FDCA’s purpose is to protect consumers from adulterated and misbranded food and beverages. The FDCA prohibited misbranding food and beverages using false or misleading labels to further this goal.
This Note begins with an outline of the history of federal food regulation in the United States. It discusses the FDCA’s origin and purpose and its subsequent amendment, the NLEA. This Note will then discuss the NLEA’s preemption provision and its interplay with private litigation brought under state consumer protection laws. It will also examine the FDCA’s interaction with private litigation brought under the Lanham Act. The discussion then moves to the Supreme Court’s decision in POM Wonderful LLC v. Coca-Cola, Co. This Note will proffer that the Court’s conclusion that the Lanham Act is a necessary complement to the FDCA reveals major gaps in the FDA’s enforcement of the FDCA. This Note will then examine the reasons for the FDA’s sporadic enforcement of the FDCA. Contrary to the Court’s reasoning in POM, this Note will argue the Lanham Act is not a suitable complement to resolve the FDCA enforcement issues because manufacturers do not bring these suits to advocate for consumer protection, but rather to self-serve their own commercial interests. Accordingly, this Note will offer an alternate solution aimed at protecting consumer interests, namely, consumer-initiated suits to enforce label regulations, brought under state consumer protection laws.