Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection After Snowden

Peter Margulies

Volume 66, Issue 1, 1-76

This Article outlines a dynamic conception of national security surveillance that justifies programs disclosed by Edward Snowden but calls for greater transparency and accountability in the wake of Snowden’s revelations. The dynamic conception supports the legality of section 215 of the USA Patriot Act and section 702 of the Foreign Intelligence Surveillance Act (“FISA”), programs that received informed input from all three branches of government. Each program is part of a long democratic experiment in the integration of secrecy, deliberation, and strategic advantage that dates to the Constitution’s framing. Both programs reflect Congress’s concern that intelligence collection be sufficiently agile to keep up with evolving threats. The Foreign Intelligence Surveillance Court (“FISC”) required that both programs use technology not only to collect data, but also to prevent unduly intrusive government use of that data. However, even though both section 215 and section 702 were legal in their pre-Snowden iterations, changes are now necessary to ensure the programs’ legitimacy.

Legislation sponsored by Senator Patrick Leahy modifies section 215 by leaving private data in the hands of telecommunications companies and authorizes the FISC to appoint amici to represent the public interest. On the FISC process front, the Leahy bill is a welcome first step, but does not go far enough. A more robust public advocate whose participation does not require permission by the FISC would provide a more meaningful check on the government. This Article argues that a more robust public advocate could withstand constitutional objections based on Article III and the Appointments Clause of the Constitution, and enhance domestic and international faith in the FISC’s deliberations.

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The Trans Panic Defense: Masculinity, Heteronormativity, and the Murder of Transgender Women

Cynthia Lee and Peter Kwan

Volume 66, Issue 1, 77-132

When a heterosexual man is charged with murdering a transgender woman with whom he has been sexually intimate, one defense strategy is to assert what has been called the trans panic defense. The defendant claiming this defense will say that the discovery that the victim was biologically male provoked him into a heat of passion causing him to lose self-control. If the jury finds that the defendant was actually and reasonably provoked, it can acquit him of murder and find him guilty of the lesser offense of voluntary manslaughter. The trans panic defense strategy is troubling because it appeals to stereotypes about transgender individuals as sexually deviant and abnormal.

In this article, we examine the cultural structures of masculinity that may lead a man to kill a transgender woman with whom he has been sexually intimate. Building on Professor Angela Harris’ important work on male-on-male violence, we argue that violence by men against transgender women is a variant of gender violence that has not received the attention it deserves. We examine how masculinities theories can unmask the motivations behind the trans panic defense and discuss ways in which structures of masculinity can encourage juries to find that the defendant who claims trans panic was reasonably provoked.

Most critics of the trans panic defense strategy have argued that defendants should be banned from making trans panic arguments. Instead of advocating a ban on this defense strategy, we offer a tool kit of strategies for prosecutors to combat claims of trans panic. One of several suggestions we offer is a rephrasing of terminology, replacing the phrase “trans panic” with “trans rage.” We also argue that the current understanding of reasonableness in provocation doctrine¬¬—reasonableness as that which is typical—is misguided. We suggest reasonableness is better understood as a normative limitation on the provocation defense.

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Contractual Innovation in Venture Capital

John F. Coyle and Joseph M. Green

Volume 66, Issue 1, 133-183

Scholars agree that contractual innovation, though sometimes slow to occur, can and will take place if certain conditions are met. This Article argues that the evolution of certain venture finance contracts over the past decade constitutes a prime example of such innovation.

Drawing upon interviews with some of the leading venture capital attorneys in the United States, this Article chronicles how two types of venture finance securities—the convertible note and convertible preferred stock—and related contracts evolved in response to technological advances that greatly reduced the cost of launching a start-up technology company. Prior to 2005, individuals who invested in early-stage technology companies would typically invest alongside the founder of the new venture by purchasing shares of common stock. Venture capital funds, which invested more substantial amounts of capital at later stages in a company’s development, would typically receive convertible preferred stock. And in situations in which a company needed a loan from its current investors to keep it afloat until a new infusion of capital could be raised—a so-called bridge loan—investors would typically receive promissory notes that were convertible into equity at a future date. Each of these types of investment contracts reliably matched up with a particular mode of financing transaction.

Around 2005, however, this stable contractual infrastructure began to change. A number of technological developments—including, most significantly, the rise of cloud computing—led to a dramatic decline in the costs of launching a technology company. In the wake of these changes, the contracts used by investors to structure their investments in these ventures evolved in two important ways. First, convertible notes, previously used primarily in the context of bridge financing, were increasingly used to provide financing to early-stage technology companies. Second, investors in early-stage technology companies increasingly turned to much simplified versions of traditional convertible preferred stock documents to structure their investments. While these changes have fundamentally reshaped the contractual infrastructure of early-stage venture finance in the United States, they have attracted scant attention in the legal literature to date. This Article aspires to fill that gap.

This Article also draws upon this account of evolution and change in the venture capital space to develop insights into the process of contractual innovation more generally. It argues that current theories of contractual innovation only partially explain the changes to these venture finance contracts over the past decade. It argues that while attorneys can and do serve to drive the process of contractual innovation, the success of these efforts is highly dependent upon partnerships that they develop with the end users of these contracts. Finally, this Article suggests that the substitution of one type of contract for another—using equity instead of debt, for example—is itself an innovation that has gone largely unappreciated in the contractual innovation literature.

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TriggerFish, StingRays, and Fourth Amendment Fishing Expeditions

Brian L. Owsley

Volume 66, Issue 1, 183-233

Cell site simulators are an electronic surveillance device that mimics a cell tower causing all nearby cell phones to register their data and information with the cell site simulator. Law enforcement increasingly relies on these devices during the course of routine criminal investigations.

The use of cell site simulators raises several concerns. First, the federal government seeks judicial authorization to use such devices via a pen register application. This approach is problematic because a cell site simulator is different than a pen register. Moreover, the standard for issuance of a pen register is very low. Instead, this Article proposes that the applicable standard for granting a request to use a cell site simulator should be based on the Fourth Amendment probable cause standard.

Second, cell site simulators sweep up the data and information of innocent third-parties. The government fails to account for this problem. This Article proposes that the granting of an application for a cell site simulator should require a protocol for dealing with the third-party information that is captured.

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Where Is Home Depot “At Home”?: Daimler v. Bauman and the End of Doing Business Jurisdiction

Tanya J. Monestier

Volume 66, Issue 1, 233-294

In January 2014, the U.S. Supreme Court decided Daimler AG v. Bauman. The case was supposed to resolve a very important question that had divided courts for decades: when, for jurisdictional purposes, can the contacts of a subsidiary be imputed to its parent? The Supreme Court dodged this question. Instead, it answered a different, but equally important, question: under what circumstances is a corporation “at home” such that a state has general jurisdiction over it? The Court had introduced the “at home” language to the discourse on general jurisdiction a few years earlier in Goodyear Dunlop Tires Operations, S.A. v. Brown, when it held that a state has general jurisdiction over a corporation if its activities within the state are so continuous and systematic as to render the corporation essentially “at home” there. At the time, courts and commentators were not one-hundred percent clear on the meaning of the “at home” language. After Daimler, they will be.

Daimler reinforced the idea that the “at home” basis for general jurisdiction is intended to be exceptional. Ordinarily, a corporation is only “at home”—and therefore subject to general jurisdiction—in, at most, two places: its state of incorporation and its principal place of business. In making this pronouncement, the Supreme Court has done away with a very well established, albeit wholly under-theorized, basis for general jurisdiction: “doing business.” For the better part of a century, courts had assumed general jurisdiction over corporations on the basis that they were doing business in the forum, as evidenced by the corporation’s commercial presence in the state. This basis of jurisdiction was perceived as exorbitant by foreigners and often condemned as promoting forum shopping. Daimler officially sounds the death knell for doing business jurisdiction in the United States.

In this Article, I examine the decisions of the majority and the concurrence, highlighting the critical areas of disagreement. I lay out the key implications of Daimler: the end of doing business jurisdiction in the United States, the doctrinal pressure on alternative bases of jurisdiction to fill the void left by Daimler, and the real-world consequences for litigants and courts. I also look at the critical questions that Daimler left unanswered—in particular, the standard for imputation of jurisdictional contacts from a subsidiary to a parent and the propriety of imputation where the underlying basis of jurisdiction is that the subsidiary is incorporated in the state or has its principal place of business there. The implications of the Daimler decision will be felt by both plaintiffs and defendants for years to come. Accordingly, it warrants a careful look.

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The Slippery Slope of Material Support Prosecutions: Social Media Support to Terrorists

Emily Goldberg Knox

Volume 66, Issue 1, 295-330

On September 21, 2013, a group of al-Shabaab gunmen attacked the Westgate Shopping Mall in Nairobi, Kenya, killing nearly seventy civilians. In conjunction with this attack, al-Shabaab’s media wing, HSM Press, launched a public relations campaign on Twitter claiming responsibility for the attack, posting live information and pictures, and taunting Kenyan and global security forces with threats of future action. More recently, the Islamic State of Iraq and the Levant’s social media campaign has drawn much international attention. This Note discusses whether the U.S. government could successfully pursue material support to terrorist charges against social media companies for allowing designated foreign terrorist organizations to use their services and, if so, the constitutional and policy implications.

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Price Fixing the Priceless? Discouraging Collusion in the Secondary Art Market

Nicole Dornbusch Horowitz

Volume 66, Issue 1, 331-359

In the 1920s and 1930s, major oil companies took advantage of market conditions to raise gasoline prices. They sold a limited amount of gasoline on smaller submarkets and the remainder of their gasoline by other methods. Despite the fact that the submarkets only represented a small portion of the overall gasoline market, pricing in the greater market was based on them. Thus, through collusive agreements, major oil companies were able to raise prices in the overall market by inflating prices in the smaller markets. In United States v. Socony-Vacuum Oil Co., the U.S. Supreme Court held that these agreements constituted price-fixing and violated the Sherman Act.

Today, conditions in the art market create opportunities and incentives for coordinated price manipulation similar to those present in Socony-Vacuum. Art sold at auction represents a small portion of the art market, but prices paid for art at auction are used to determine prices in the larger market. Further, the art market’s opacity and the fact that small, tight-knit groups buy and sell high-end artworks provide even greater opportunities for collusion than those present in Socony-Vacuum. This Note examines these comparable opportunities and incentives through a study of activity in the market for artworks by Andy Warhol.

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