Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

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The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Revenge Porn: Spurned Lovers’ Retaliation in the Digital Age

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One of the biggest scandals of 2014 was the leak of several celebrities’ nude photographs to the internet this past September by hackers, who obtained the photographs from the celebrities’ iClouds.   The media was bursting with news about the photographs and statements from female celebrities like Jennifer Lawrence and Kate Upton. 

However, celebrities are not the only victims of these kinds of violations; they happen to women everywhere, all the time.  Spurned ex-lovers can easily and anonymously post nude photographs and videos acquired while in an intimate relationship with another to the Internet on a variety of sites created just for that purpose.  The practice is known as “revenge porn,” and it has been a highly relevant topic among legislators, criminal law practitioners, and feminist advocates following the recent scandal.

Addressing Concerns with Body Cameras

After the recent Michael Brown and Eric Garner, many have called for police to wear body cameras, and some police departments have already begun to implement the devices.  Body cameras would resolve most of the factual disputes that can arise during a police encounter; however, skeptics have brought to light several societal and privacy concerns that we must address before fully incorporating a camera into the police uniform.  First, departments must create strict protocol regarding the activation and deactivation of the body cameras.  Second, departments must establish proper standards for the use and storage of the video.

Texas Protects Harassers’ Constitutional Rights in the Name of “Self-Expression”

A decision from the highest criminal court in Texas is the latest seeking to define the line between privacy and constitutionally protected speech.  Last month, the Texas Court of Criminal appeals struck down a portion of a state law that prevented people from taking “upskirt” pictures, holding that the law was unconstitutional on its face because it violated free-speech rights and penalized people’s thoughts at the expense of trying to protect people from harassment. The case involved a Texas statute, which made it a felony crime to photograph or record someone without the other person’s consent and “with the intent to arouse or gratify the sexual desire of any person.”

The Texas court found this statute to be unconstitutional under the Texas Constitution, and the U.S. Constitution’s First Amendment’s right to free speech and individual thought.  The law was meant in part to protect against predatory photographers who covertly take pictures under women’s skirts or down their blouses than then post them on the Internet.  Complaints of such incidents have become common across the nation as mobile phones equipped with cameras are on the rise.

No Such Thing as Behind Closed Doors: How Technology Has Outdated the Third-Party Doctrine

Most people would agree with the assertion that if you want to keep something private, then you just shouldn’t tell anyone! And that is just the rule that the Supreme Court developed in Katz v. United States when it contemplated matters that are not considered “private,” in regards to the Fourth Amendment. The Court stated that “what a person knowingly exposes to the public . . . . is not a subject of Fourth Amendment protection.” A little over a decade later, the Court expanded this notion in Smith v. Maryland to create the third-party doctrine, which states that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The idea behind the doctrine is that citizens should take steps to protect their privacy or to preserve their secrets; and if a citizen puts their personal information out to another party (usually a business with the third-party doctrine), then that information is obviously not private—and more importantly, it is not protected under the Fourth Amendment from government intrusion.