The Yale Law Journal

Privacy

Article

Government Hacking

Jonathan Mayer

The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have …

Forum

Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches

Alicia Solow-Niederman

While data breaches continue to roil the headlines, regulation and legislation are unlikely to provide a timely solution to protect consumers. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transac…

Article

Machine Testimony

Andrea Roth

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…

Note

Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law

Beatrice Walton

Low-intensity state-sponsored cyber attacks exist within a “gap” in public international law. Falling short of the definitions of use of force and intervention, these attacks are not clearly governed by international law. Some scholars have sought to stretch established …

Review

Privacy’s Trust Gap: A Review

Neil Richards & Woodrow Hartzog

Obfuscation: A User’s Guide for Privacy and Protest By Finn Brunton and Helen Nissenbaum Cambridge and London: The MIT Press 2015 author. Neil Richards is Thomas and Karole Green Professor of Law, Washington University School of Law; Affiliate Scholar, The Center for Internet…

Forum

The Private Search Doctrine After Jones

Andrew MacKie-Mason

In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, eve…

Forum

Apple and the American Revolution: Remembering Why We Have the fourth Amendment

Clark D. Cunningham

On February 16, 2016, the U.S. Department of Justice (DOJ)obtained an unprecedented court order in the San Bernardino shooting case thatwould have forced Apple to design and deliver to the DOJ software capable ofdestroying the encryption and passcode protections built into the iPhone. The DOJasserte…

Forum

Predicting Utah v. Streiff's Civil Rights Impact

Katherine A. Macfarlane

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal d…

Forum

Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt

Cindy Cohn

Robert Litt, General Counsel of the Office of the Director of National Intelligence, has offered a new analysis for the Fourth Amendment in the Information Age, grounded in two cases arising from the NSA’s domestic surveillance programs.1 As opposing counsel or amicus in the cases he cites in his ar…

Forum

The Fourth Amendment in the Information Age

Robert S. Litt

To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digita…

Essay

The New Public

Sarah A. Seo

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotiv…

Forum

Online Service Providers and Surveillance Law Transparency

Jonathan Manes

On June 5, 2013, the first revelation hit the front pages: documents provided by Edward Snowden showed that the National Security Agency (NSA) had for years ordered telephone companies to turn over our domestic telephone calling records en masse.1 The government had created a database of …

Article

The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

Maureen E. Brady

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…

Comment

Law Enforcement and Data Privacy: A Forward-Looking Approach

Reema Shah

The Edward Snowden revelations illustrated the ramifications of a domestic and international legal infrastructure that failed to keep up with technological advancements. The USA PATRIOT Act and other national security laws were ill-equipped to handle developments in bulk data collection. T…

Article

The Un-Territoriality of Data

Jennifer Daskal

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…

Forum

How Conflict Entrenched the Right to Privacy

Reva B. Siegel

We are about to mark the fiftieth anniversary of Griswold v. Connecticut,1 a 1965 case in which the Supreme Court struck down a Connecticut law that criminalized the use of contraception, in the process giving birth to the modern right to privacy. From Griswold’s understanding of “libert…

Forum

Overlooking Equality on the Road to Griswold

Melissa Murray

This year marks the fiftieth anniversary of Griswold v. Connecticut,1the Supreme Court decision that famously articulated a right to privacy.2 As we celebrate Griswold, it is easy to overlook what preceded it—and what was surrendered in Griswold’s embrace of the right to privacy. In 1960,…

Forum

Griswold and the Public Dimension of the Right to Privacy

Cary Franklin

Fifty years ago, the Court in Griswold v. Connecticut1 invalidated Connecticut’s ban on birth control. The various opinions in Griswold were in many ways products of their time. For instance, none of the Justices focused on the implications of the Connecticut law for women’s equality. Con…

Forum

Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality

Douglas NeJaime

In Griswold v. Connecticut,1 the Supreme Court ruled that a Connecticut statute criminalizing the use of contraception violated married couples’ privacy rights. On the decision’s fiftieth anniversary, this brief Essay takes cues from a principle at stake in Griswold—that procreative li…

Forum

Contraception as a Sex Equality Right

Neil S. Siegel & Reva B. Siegel

“Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s socia…

Forum

Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders

Rebecca Wexler

Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…

Forum

Riley's Implications for Fourth Amendment Protection in the Cloud

Ryan Watzel

In June 2014, the Supreme Court unanimously held in Riley v. California1 that the digital content of cell phones does not fall within the search-incident-to-arrest exception to the Fourth Amendment’s prohibition against unreasonable searches. The Court provided a clear answer “to the qu…

Forum

Storage Wars: Greater Protection for Messages in Memory

Matthew Sipe

The laws governing stored communication privacy—enacted almost thirty years ago—may finally be updated to reflect contemporary needs, at least in part. The Email Privacy Act,1 proposed by Representatives Kevin Yoder (R-Kan.), Tom Graves (R-Ga.), and Jared Polis (D-Colo.), would afford gr…

Forum

Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones

Miriam H. Baer

In this Essay, Professor Miriam Baer focuses on Justice Sotomayor’s concurrence in United States v. Jones, which has attracted widespread notice due to Justice Sotomayor’s suggestion that the Court reconsider its reasonable expectation of privacy test and the related third-party doctrine. Professor …

Forum

Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones

Kevin S. Bankston & Ashkan Soltani

In United States v. Jones, five Supreme Court Justices wrote that government surveillance of one’s public movements for twenty-eight days using a GPS device violated a reasonable expectation of privacy and constituted a Fourth Amendment search. Unfortunately, they didn’t provide a clear and administ…

Comment

Shifting the Burden in Software Licensing Agreements

Stephen S. Gilstrap


121 Yale L.J. 1271 (2012).

Forum

When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches

Priscilla J. Smith, Nabiha Syed, David Thaw & Albert Wong

Introduction

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enfor…

Feature

Federalization in Information Privacy Law

Patricia L. Bellia

118 Yale L.J. 868 (2009). 

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of str…

Feature

Preemption and Privacy

Paul M. Schwartz

118 Yale L.J. 902 (2009). 

A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory ap…

Forum

Escape Into the Panopticon: Virtual Worlds and the Surveillance Society

Joshua Fairfield

The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable. Introduction Suppose that you move to a new town. To buy your home, you must allow the devel…

Comment

The Marriage of Family Law and Private Judging in California

Sheila Nagaraj

116 Yale L.J. 1615 (2007)

Note

Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext

Eric F. Citron

Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our…

Forum

Lawrence and the Right to Metaprivacy

Jamal Greene

Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign sa…

Forum

The New Electronic Discovery Rules: A Place for Employee Privacy?

Elaine Ki Jin Kim

The new procedures for electronic discovery might encourage companies to spy on their own workers. To prevent that from happening, I argue that courts should apply the new rules—which will likely take effect in December—in a way that discourages the abuse of surveillance technologies and protect…

Article

Beyond Lawrence: Metaprivacy and Punishment

Jamal Greene

115 Yale L.J. 1862 (2006)

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the ga…

Note

Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence

Andrew J. DeFilippis

115 Yale L.J. 1086 (2006)

This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note chall…

Article

The Two Western Cultures of Privacy: Dignity Versus Liberty

James Q. Whitman

113 Yale L.J. 1151 (2004)

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and …

Note

Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff

Alice Clapman

112 Yale L.J. 1545 (2003)

When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, go…

Essay

Local Policing After the Terror

William J. Stuntz

111 Yale L.J. 2137 (2002)

Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…

Review

Dialectics and Domestic Abuse

Katharine K. Baker

110 Yale L.J. 1459 (2001)