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Abstract:
In the last twenty-five years, the federal government and all fifty states have enacted new criminal laws that prohibit unauthorized access to computers. These new laws attempt to draw a line between criminality and free conduct in cyberspace. No one knows what it means to access a computer, however, nor when access becomes unauthorized. The few courts that have construed these terms have offered divergent interpretations, and no scholars have yet addressed the problem. Recent decisions interpreting the federal statute in civil cases suggest that any breach of contract with a computer owner renders use of that computer an unauthorized access. If applied to criminal cases, this approach would broadly criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web.

This Article presents a comprehensive inquiry into the meaning of unauthorized access statutes. It begins by explaining why legislatures enacted unauthorized access statutes, and why early beliefs that such statutes solved the problem of computer misuse have proved remarkably naïve. Next, the Article explains how the courts have construed these statutes in an overly broad way that threatens to criminalize a surprising range of innocuous conduct involving computers. In the final section, the Article offers a normative proposal for interpreting access and authorization. This section argues that courts should reject a contract theory of authorization, and should narrow the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. The section justifies this proposal on several grounds. First, the proposal will best mediate the line between securing privacy and protecting the liberty of Internet users. Second, the proposal mirrors criminal law's traditional treatment of crimes that contain a consent element. Third, the proposed approach is consistent with the basic theories of punishment. Fourth, the proposed interpretation avoids possible constitutional difficulties that may arise under the broader constructions that courts recently have favored.

cybercrime, computer crime, unauthorized access, code

Abstract:
This article argues that the common wisdom on the USA Patriot Act is wrong. Far from being a significant expansion of law enforcement powers online, the Patriot Act actually changed Internet surveillance law in only minor ways and added several key privacy protections. The article focuses on three specific provisions of the Patriot Act: the provision applying the pen register law to the Internet, the provisions relating to Carnivore, and the new computer trespasser exception to the Wiretap Act. By explaining the basic framework of surveillance law and applying it to the Patriot Act, the author shows how the Internet surveillance provisions of the Patriot Act updated the law in ways that both law enforcement and civil libertarians should appreciate.

Abstract:
This essay is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.

case, law

Abstract:
Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they'll quickly learn that it's surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.

This Article presents a user's guide to the SCA. It explains in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of electronic communication service and remote computing service, and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.

surveillance, privacy

Abstract:
The new frontier of the Fourth Amendment is the search and seizure of computer data. Created to regulate entering homes and seizing physical evidence, the Fourth Amendment's prohibition on unreasonable searches and seizures is now called on to regulate a very different process: retrieval of digital evidence from electronic storage devices. While obvious analogies exist between searching computers and searching physical spaces, important differences between them will force courts to rethink the basic meaning of the Fourth Amendment's key concepts. What does it mean to search computer data? When is computer data seized? When is a computer search or seizure reasonable?

This article offers a normative framework for applying the Fourth Amendment to searches of computer data. It begins by exploring the basic differences between physical searches of physical property and electronic searches of digital evidence. It then proposes an exposure theory of Fourth Amendment searches: any exposure of data to an output device such as a monitor should be a search of that data, and only that data. The exposure approach is then matched with a rule for computer seizures: while copying data should not be deemed a seizure of that data, searches of copies should be treated the same as searches of the original. In the final section, the article proposes a rethinking of the plain view exception in computer searches to reflect the new dynamic of digital evidence investigations. The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. Tailoring the doctrine in light of the new realities of computer investigations will protect the function of existing Fourth Amendment rules in the new world of digital evidence.

Fourth Amendment, computers, digital evidence, cybercrime

Abstract:
This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.

Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.

This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.

Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.

This Essay will proceed in three parts. Part One compares the basic mechanisms of traditional crimes and computer-related crimes. It explains how the switch from physical to electronic crimes brings a switch from physical evidence and eyewitness testimony to digital evidence, and how investigators tends to use very different methods of collecting the two types of evidence. Part Two turns from the facts to the governing law, focusing on the Fourth Amendment's prohibition on unreasonable searches and seizures. It shows that existing Fourth Amendment doctrine is naturally tailored to the facts of physical crimes, but that a number of difficulties arise when that doctrine is applied to the facts of computer crime investigations. Part Three argues that new rules are needed to govern digital evidence collection, and offers preliminary thoughts on what those rules might look like and what institutions should generate them. It also shows that courts and Congress already have begun responding to the problem of digital evidence with a number of computer-specific rules.

fourth amendment, computers, digital evidence

Abstract:
This is an encyclopedia entry on search and seizure law for the forthcoming Oxford Encyclopedia of Legal History. It reviews the origins of the Fourth Amendment, the early years of the Fourth Amendment, the evolution of the Fourth Amendment, the existing function and doctrine of the Fourth Amendment, and discusses the possible future of Fourth Amendment law.

I. Colonial Experience and the Enactment of the Fourth Amendment
II. The Fourth Amendment Before the Prohibition Era
III. The Prohibition Era to 1961
IV. The Criminal Procedure Revolution of the 1960s
V. The Modern Function and Framework of Fourth Amendment Doctrine
VI. The Future of the Fourth Amendment
Bibliography

search and seizure, Fourth Amendment

Abstract:
This Article contends that the legal rules regulating the search warrant process must be revised in light of the demands of digital evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant. Computer technologies tend to bifurcate the process into two steps: the police first execute a physical search to seize computer hardware, and then later execute a second electronic search to obtain the data from the seized computer storage device. The failure of law to account for the two-stage process of computer searches and seizures has caused a great deal of doctrinal confusion, and makes it difficult (if not impossible) for the law to regulate the warrant process effectively. The Article concludes by offering a series of proposed amendments to Rule 41 of the Federal Rules of Criminal Procedure to update the warrant process for the era of digital evidence.

Fourth Amendment, computers, Rule 41

Abstract:
This article shows how many disputes within Internet law are rooted in a common problem, the problem of perspective. Whenever we apply law to the Internet, we must first choose a perspective from which to model the facts of the Internet. Do we follow reality or virtual reality? We can adopt a user's internal perspective, and view the Internet as the virtual world of cyberspace, or else we can adopt an external perspective and view the Internet as a physical network. The article explains how the problem of perspective pervades the law of the Internet, and offers several strategies that courts can use to select a perspective in a given case.

Internet, cyberspace, cyberlaw, Fourth Amendment

Abstract:
This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

Fourth Amendment, Internet, cyberspace

Abstract:
When does conduct by an online player in a virtual world game trigger liability for a real-world crime? In the future, will new criminal laws be needed to account for new social harms that occur in virtual worlds? This short essay considers both questions. Part I argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. Existing law will not recognize virtual murder, virtual threats, or virtual theft. Virtual worlds will be regulated like any other game, but their virtualness normally will have no independent legal resonance from the standpoint of criminal law.

Part II turns to the normative question: Are new laws needed? It concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds. Virtual worlds at bottom are computer games, and games are artificial structures better regulated by game administrators than federal or state governments. The best punishment for a violation of a game comes from the game itself. Criminal law is a blunt instrument that should be used only as a last resort. The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy. Online virtual worlds may seem real to some users, but unlike real life, they are mediated by game administrators who can take action with consequences internal to the game. Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere.

virtual worlds

Abstract:
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court's refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer: No one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one single approach, the Supreme Court uses four different tests at the same time. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. The use of multiple models has a major advantage over a singular approach, as it allows the courts to use different approaches in different contexts depending on which can most accurately and consistently identify practices that need Fourth Amendment regulation.

Fourth Amendment, Reasonable Expectation of Privacy, katz

Abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

Fourth Amendment, privacy, technology, Katz

Abstract:
Does encrypting Internet communications create a reasonable expectation of privacy in their contents, triggering Fourth Amendment protection? At first blush, it seems that the answer must be yes: A reasonable person would surely expect that encrypted communications will remain private. In this paper, Professor Kerr explains why this intuitive answer is entirely wrong: Encrypting communications cannot create a reasonable expectation of privacy. The reason is that the Fourth Amendment regulates access, not understanding: no matter how unlikely it is that the government will successfully decrypt ciphertext, the Fourth Amendment offers no protection if it succeeds. As a result, the government does not need a search warrant to decrypt encrypted communications. This surprising result is consistent with Fourth Amendment caselaw: it matches how courts have resolved cases involving the reassembly of shredded documents, recovery of deleted files, and the translation of foreign languages. The Fourth Amendment may regulate government access to ciphertext, but it does not regulate government efforts to translate ciphertext into plaintext.

Fourth Amendment, ciphertext, encryption, plaintext, reasonable expectation of privacy

Abstract:
This essay offers a skeptical view of recent proposals to deter cybercrime by imposing civil liability on ISPs, permitting self-help, and architecting cyberspace. It contends that these proposals reflect in varying degrees a common conceptual mistake: overreliance on the metaphor of the Internet as a virtual place. The overreliance on virtual metaphors incorporates assumptions valid in the physical world that break down when applied to Internet.

To approach computer crime in a realistic way, commentators should focus on the physical reality of how the Internet works. Both virtual and physical perspectives of the Internet can offer important lessons, but any strategy to deter computer crime must look viable given the physical reality of the network. Strategies that rely too heavily on the virtual metaphors of cyberspace are likely to rely on assumptions drawn from the physical world that do not apply to the Internet; the process of importing concepts from physical space to the virtual world of cyberspace will introduce errors. Overreliance on virtual metaphors will often misrepresent how online crime occurs and thus how it can be deterred. Where virtual metaphors govern, proposals to deter computer crime through civil liability and social norms will prove less effective in practice than they may first appear in theory.

The essay begins by exploring the tension within Internet law between modeling the Internet using virtual reality and physical reality, with a special emphasis on what this tension means for developing arguments about deterrence and computer crime. The analysis explains that a physical description of the Internet differs dramatically from a virtual description of Internet applications, and argues that any effective model for deterring computer crime must be rooted in the former rather than the latter. This insight is then applied to three prominent proposals. It begins with offensive self-help, focusing on Michael O'Neill's article Old Crime in New Bottles: Sanctioning Cybercrime; turns next to architecture regulation, focusing on Neal Katyal's essay Digital Architecture as Crime Control; and concludes by studying the myriad proposals in favor of civil liability for third-party computer operators.

Computer crime, cybercrime, deterrence

Abstract:
This Article argues that the rules of Internet surveillance law remain obscure and undeveloped because of the remedies Congress has chosen to enforce its statutory standards. By rejecting a suppression remedy and embracing aggressive civil penalties, Congress has ensured that courts only rarely encounter challenges to Internet surveillance practices - and when they do, the cases tend to be in civil cases between private parties that raise issues far removed from those that animated Congress to pass the statutes. As a result, the courts have not explained how the complex web of surveillance statutes apply in routine criminal cases, and the rare judicial decisions construing the statutes tend to confuse the issues, not clarify them. This article argues that Congress should add a statutory suppression remedy to lift the fog of Internet surveillance law, and that such a change would benefit both civil liberties and law enforcement interests alike.

Internet, surveillance, cybercrime

Abstract:
This brief essay is a contribution to a symposium on How Blogs Are Transforming Legal Scholarship. It considers whether blogs have an important role in furthering serious legal scholarship, as well as how blogs can help legal academics contribute to public debates on law and politics. It suggests that the blogging format is not well-suited to advance scholarship, but that it offers promising possibilities for reaching a broader audience interested in law and public affairs.

blogs, legal scholarship

Abstract:
The DMCA is the law that law professors love to hate. In these brief remarks delivered at a Cato Institute symposium, the author offers a "lukewarm" defense of the DMCA. While the DMCA is not a great law, nor even necessarily a good one, there's a method to the madness of the DMCA. The law reflects an intellectually coherent effort to maintain the enforceability of contract rights on the Internet by interfering with the market for contract-breaching devices. Like laws that prohibit the possession of eavesdropping devices and burglar tools, the DMCA tries to reduce rights-violating conduct by interfering with the market for rights-violating tools. This is an imperfect regulatory strategy: rights-violating tools can always be used in legitimate ways, and the DMCA may not draw the line between rights-violating tools and legitimate tools in the right place. Despite this, the basic structure of the DMCA may eventually prove to be a respectable model for enforcing intellectual property and contract rights online.

DMCA, copyright

Abstract:
This article offers a defense of the Fourth Amendment's third-party doctrine, the controversial rule that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power. This article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses.

The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. The third-party doctrine corrects for the substitution effect of third parties that would otherwise allow savvy criminals to substitute a hidden third-party exchange for a previously public act. Second, the doctrine helps ensure the clarity of Fourth Amendment rules. It matches the Fourth Amendment rules for information to the rules for location, creating clarity without the need for a complex framework of sui generis rules.

Finally, the two primary criticisms of the third-party doctrine are significantly weaker than critics have claimed. The third-party doctrine is awkward for reasons of form rather than function; it is a consent doctrine masquerading as an application of the Katz "reasonable expectation of privacy" test. Claims that the doctrine gives the government too much power overlook the substitutes for Fourth Amendment protection in the use of the third parties. Those substitutes include entrapment law, common law privileges, the Massiah doctrine, the First Amendment, internal agency regulations, and the rights of the third parties themselves.

fourth amendment, katz, smith v. maryland, third party, third parties

Abstract:
This essay argues that the Foreign Intelligence Surveillance Act should be restructured to account for changes in communications technology and Fourth Amendment law since FISA's enactment in 1978. FISA reflects the person-focused assumptions of 1970s-era technology and constitutional law. At that time, foreign intelligence monitoring necessarily focused on subject identity and location. Although some modern investigations track this traditional approach, many do not; investigations involving packet-switched networks often start with data divorced from any known person or location. FISA should be amended to create two distinct authorities for surveillance: data-focused authorities when the identity and/or location of the subject are unknown, and person-focused authorities when the identity and/or location are known. A two-pronged approach can best implement the goals of foreign intelligence investigations given the realities of modern communications networks.

FISA, Foreign Intelligence, Internet, Fourth Amendment

Abstract:
This is a book review of an entertaining and engaging new book by Jack Goldsmith and Tim Wu, "Who Controls the Internet? Illusions of a Borderless World". Professors Goldsmith and Wu have written a short and accessible work that makes a straightforward and persuasive argument about the enforceability of law over the Internet. The book's brevity and anecdotal approach means that it overlooks a lot of detail; the dynamics of Internet regulation are more complicated than this short volume suggests. Whether this is a blessing or a curse depends on the reader's taste. It makes the book a fun read, but it also keeps the authors from grappling fully with the dynamics of the topics they cover. Either way, Who Controls the Internet is an important addition to the literature that deserves to be widely read.

This review begins with a summary of the book, and next discusses the cyberutopian vision of the Internet that it targets. It then considers what seems to be the deeper question underlying the book: When can law successfully regulate the Internet? It suggests that the effectiveness of a legal regime designed to regulate Internet transactions will depend heavily on four factors: who the law regulates, the cost and political viability of enforcement strategies, how much compliance is needed for the law to achieve its goals, and which side is winning the technological arms race at any given time.

Internet enforcement code

Abstract:
What does it mean to "seize" computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This essay argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of its possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying that function to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.

Abstract:
This is a brief reply to published comments by Professor Sherry Colb and Professor Peter Swire on an article by Professor Orin Kerr entitled, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," forthcoming in the Michigan Law Review. This reply will be published along with the lead article and the comments by Swire and Colb.

The reply contains a response to Professor Colb followed by a response to Professor Swire. Topics covered include the relative competence of Congress and the Courts in the protection of privacy involving new technologies; the constitutional authority of Congress to protect privacy in new technologies; and the pragmatist case for reading privacy statutes broadly.

"fourth amendment," privacy, computers

Abstract:
In his recent Lockhart lecture, published in this journal as "The Constitution in the National Surveillance State," Jack Balkin warns of a "new form of governance" that he calls "The National Surveillance State." This brief response article argues that the changes Balkin details should be understood as a technology problem instead of a governance problem. We are witnessing a broad societal shift away from human observation and towards computerization. The widespread use of computers and the introduction of digital information have caused dramatic changes in how individuals can learn what others are doing. The government's goals have not changed, but the technological playing field has. The law must respond because technology has changed, not because a new form of governance has emerged. Understanding the changes as a technology problem rather than a governance problem also suggests solutions that draw support from a wide political base rather than a narrow one.

surveillance, Fourth Amendment

Abstract:
In his new book, 'Privacy At Risk,' Professor Christopher Slobogin offers a new approach to the Fourth Amendment designed to impose more restrictions on government surveillance practices. He contends that the Fourth Amendment should be organized around a proportionality principle: Every investigative technique should require some cause, and public opinion as to the intrusiveness of the technique should determine how much cause is required. Professor Slobogin applies this principle to transactional surveillance and closed circuit television and generates a complex set of proposed Fourth Amendment rules to govern their use by government actors.

In this book review, Professor Orin Kerr argues that even a Supreme Court sympathetic to Slobogin's policy preferences should be wary of his proposal. Slobogin's method suffers from two major flaws. First, the proportionality principle does not accurately weigh the interests it claims to weigh. Public perceptions of intrusiveness do not measure privacy interests, and the government's level of proof does not measure government interests. Further, the method stacks the deck in favor of limiting government action by ignoring the context in which techniques are used. Second, a future Supreme Court could reach Slobogin's results in much simpler ways. Slobogin's approach is surprisingly complicated, as it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. Easier paths exist if a future Supreme Court majority wishes to regulate transactional and public surveillance under the Fourth Amendment.

Fourth Amendment, surveillance, CCTV, Slobogin

Abstract:
Which branch of government should take the leading role in the creation of criminal procedure rules when technology is in flux? In a recent article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Michigan Law Review 801-888 (2004), Professor Kerr argued that Congress has a relative institutional advantage over the courts in the creation of rules regulating law enforcement investigations that involve new technologies. Professor Daniel Solove disputes that institutional advantage in a symposium essay, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference. In this brief response to Solove, Professor Kerr contends that Solove's critique misses the mark in two ways. First, Solove improperly compares a descriptive account of statutory law protections with a normative account of constitutional law protections. Second, Solove fails to appreciate fully the institutional limitations of judicial rulemaking when technology is changing rapidly.

Fourth Amendment computers

Abstract:
When is injunctive relief appropriate in Fourth Amendment cases? Should courts feel free to craft wide-ranging injunctive relief to avoid Fourth Amendment defects? Or is there something wrong, either as a matter of doctrine or policy, with crafting broad injunctions in Fourth Amendment cases?

This brief essay will suggest answers to these questions. The first part argues that as a matter of history and practice, injunctive relief has been used narrowly as an on-off switch for carefully-defined practices. The most significant doctrinal hook for this limitation is Article III standing: Injunctive relief requires a real and immediate threat of future injury to establish a case or controversy. The precise meaning of that requirement remains murky, but it arguably means that a plaintiff must show a real and immediate threat of a highly specific set of facts occurring.

The second part argues that as a matter of normative policy, any ambiguity in the current state of the law should be resolved against imposing broad Fourth Amendment injunctions. Crafting broad injunctive relief forces courts to assume duties that they are not competent to handle. Fourth Amendment doctrine is tremendously fact-specific: every fact pattern is different, and even the exceptions to the exceptions have their own exceptions. Courts are poorly suited to design broad injunctive relief in this setting. Courts should therefore decline to craft Fourth Amendment injunctions covering classes of facts instead of individual facts.

fourth amendment, injunction, courts

Abstract:
Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law's one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.

patent, patent, computers

Abstract:
This Article challenges the Supreme Court's recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics of patent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system.

patent law