Consumer Privacy in a Behavioral World

Ignacio N. Cofone & Adriana Z. Robertson

Volume 69, Issue 6, 1471-1508

On March 28, 2017, Congress killed the FCC’s attempt to protect consumer privacy on the internet and allowed ISPs to continue to track their users’ online behavior. We evaluate the impact of this decision for consumer privacy in light of biased beliefs and information overload. We do so through a well-documented behavioral bias: Non-belief in the Law of Large Numbers. In doing so, we provide a framework for protecting consumer privacy. We then suggest private law and regulatory solutions to do so in a more effective way than either the current or the now-repealed regime.

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Gerrymandering and Conceit: The Supreme Court’s Conflict with Itself

McKay Cunningham

Volume 69, Issue 6, 1509-1544

The Supreme Court has long held that extreme partisan gerrymandering violates equal protection, but has simultaneously dismissed gerrymandering disputes as nonjusticiable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting.

This Article analyzes the manageable standard requirement, revealing the Court’s failure to consistently apply it. Why is “fairness” a manageable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances manageable? Importantly, when the Court has dismissed cases for lack of a manageable standard, it seemingly did so to preserve confidence in the judiciary.

Recast in this light, the manageable standard requirement serves as proxy for preserving judicial legitimacy. This Article argues that the Court should no longer hide behind the manageability barrier because partisan gerrymandering is an artificial obstacle to democratic governance. Court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again.

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Unmothering Black Women: Formula Feeding as an Incident of Slavery

Andrea Freeman

Volume 69, Issue 6, 1545-1606

Laws and policies that impede Black mothers’ ability to breastfeed their children began in slavery and persist as an incident of that institution today. They originated in the practice of removing enslaved new mothers from their infants to work or to serve as wet nurses for slave owners’ children. The stereotype of the bad Black mother justified this separation. This trope also underlies racial disparities in breastfeeding rates in the present. The mythical Mammy loved the White children under her care but callously neglected her own. Today, the Welfare Queen reproduces for the sole purpose of gaming the system. Collective belief in the existence of the bad Black mother leads to low or no investment in resources for Black mothers who want to breastfeed, and to laws and policies that inhibit their opportunities to do so. Black infants and mothers suffer from related health conditions, including infant mortality, at disproportionately and unacceptably high rates. Structural reforms grounded in constitutional principles are necessary to reverse this manifestation of food oppression.

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“Innocence” and the Guilty Mind

Stephen F. Smith

Volume 69, Issue 6, 1609-1672

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment.

This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition.

To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congresseven knowledge of criminalitymust be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.

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California’s New Law Will Fail to Address the Larger Problem of Brady Violations

Christina E. Urhausen

Volume 69, Issue 6, 1673-1694

Brady violations have become a growing epidemic in California. As a result, California recently enacted a new law that amends section 141 of the Penal Code. The law changes the status of an “intentional” Brady violation from a misdemeanor to a felony, and imposes up to three years of prison time for those found guilty. This Note argues that this new law will fail to address the systematic problem of Brady violations. Part I discusses the legal history of the Brady decision and its progeny, as well as the shortcomings of the Brady rule. Part II explores the pervasiveness of Brady violations in California specifically. Part III explains why current safeguards are insufficient to control the problem. Part IV argues that California’s new law will have little to no effect in reducing the number of Brady violations in California. Finally, Part V proposes alternative reforms that would address the fundamental problems that lead to Brady violations.

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State-Sponsored Hash Searches & the Reasonable Expectation of Privacy

Tiffany Ku

Volume 69, Online, 28-51

This Note examines whether, under the Fourth Amendment, the United States government can conduct searches based on hash encryption to comb through large digital databases such as the cloud and find files known to be incriminating. “Hashing” is an encryption process which assigns each encrypted file its own mathematically unique identifier called a hash value. The chances of two files having the same hash value is so improbable as to be almost impossible, unless the two files are exactly the same. A file with a minor edit, such as a document with one added period, will be assigned a completely new hash value by the algorithm. Thus, if two hash values match up, a person (or a computer) can know with certainty, without opening either file, that the files are exactly the same.

In the context of national security, hash values present a powerful opportunity to find criminal collaborators. If the government lawfully seizes one copy of a criminal plan, the government could then use hash searching to quickly identify co-conspirators by searching through the cloud for other accounts storing the same hash value. This Note considers whether the government can run hash searches on large databases without violating the Fourth Amendment. First, the Note locates hash searching within existing Fourth Amendment doctrine and discusses whether hash searches, particularly those conducted by computers, require a warrant. After examining whether existing warrant exceptions apply to hash searches it turns to consider, in the alternative, whether a warrant application based on a hash search could survive Fourth Amendment requirements such as particularity. The Note argues that hash searches fall under existing exceptions to the warrant requirement. In the alternative, hash searching’s extreme object particularity will satisfy the warrant requirement even in the absence of particularity regarding target identity and file location.

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Keynote Address: Symposium Cybersecurity, Fake News & Policy: Dis- and Mis-Information

Justine Isola

Volume 69, Issue 5, 1333-1338

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Tobriner Memorial Lecture: Free Speech on Campus

Erwin Chemerinsky

Volume 69, Issue 5, 1339-1354

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Can Democracy Withstand the Cyber Age?: 1984 in the 21st Century

David M. Howard

Volume 69, Issue 5, 1355-1378

Democracy has evolved throughout history, and democracy can survive the challenges of the cyber age. However, democracy will be affected by the internet and increased cybersecurity. Cybersecurity and democracy sometimes appear at odds, and the recent cyberattacks on democratic elections show the growing need for strengthened cybersecurity. Yet these efforts to increase cybersecurity must comport with the needs of democracy. This Article describes the potential conflicts between cybersecurity and the foundations of democracy, and argues that for democracy to survive the coming decades, cybersecurity efforts must support the values that sustain our democracy, particularly that of free speech and informed voting. While we are in a dangerous period of modern history, this Article further argues that the requirements of cybersecurity and democracy do not need to be mutually exclusive, but that the internet can enhance democratic institutions.

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Media Literacy: A Foundational Skill for Democracy in the 21st Century

Tessa Jolls & Michele Johnsen

Volume 69, Issue 5, 1379-1408

The current focus on the validity, credibility, and trustworthiness of media and information is urgent and global. In the past ten to twenty years, the information landscape has fundamentally changed due to an exponential increase in access to information consumption and production. Meanwhile, the role of traditional filters and gatekeepers that monitor accuracy and balance has been substantially reduced. This transformation has given rise to an unprecedented power shift in the way information is produced, consumed, distributed, trusted, and valued. On one hand, empowered citizens can now learn, participate, share, and express themselves as never before. On the other, abuses such as unintended spread of misinformation, disinformation campaigns by malicious actors, and misuse of personal information have become rampant, and citizens must navigate a complex new media landscape without traditionally trusted resources. The challenge for democracies is to find ways to preserve the freedoms that come with more access to information while minimizing the threats that go along with them.

Modern education’s role in this is to enable students to live, learn, discern, and thrive in a diverse, global media culture, both online and offline. With content readily at hand, education must emphasize information process skills as central to teaching and learning. Media literacy offers empowerment through education and an opportunity to equip all citizens with the skills they need to become lifelong learners who are maximally prepared to navigate and leverage the power of media for their own benefit and that of others. Through media literacy education, students internalize process skillsheuristicsthat become automatic filtering systems to apply to any media content, anywhere, anytime. This approach is compatible with the mobility that most people enjoy through their mobile devices and enables citizens to be better informed participants in today’s media culture. Media literacy practices and pedagogy can be consistent, replicable, measurable and scalable globally, providing an evidence-based methodology for critical thinking, in both the consumption and production of media.

Media literacy provides a pathway to appropriate education for the 21st century. The time is now to prepare all citizens to be effective risk managers, efficient organizers of information, wise consumers, responsible content producers and active participants.

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Spreading Like Wildfire: Solutions for Abating the Fake News Problem on Social Media via Technology Controls and Government Regulation

Alexandra Andorfer

Volume 69, Issue 5, 1409-1431

“Fake news” seems to be the phrase du jour these days. During the 2016 presidential election, fake news and propaganda proliferated on social media sites like Facebook, Twitter, and Google, with many of the concocted faux sources emanating from Russia and elsewhere. In Fall 2017, tech executives and their lawyers were called to Capitol Hill to testify before Congress as to the influence fake news may have had on the American public during the last election season. In response, technology companies and social media networks are considering implementing various changes to their platforms to help users identify fact from falsehoods.

This Note examines the modifications technology companies are putting in place to ensure accuracy in news reporting. This Note also proposes a legal solution to curb fake news and warns against certain safeguards to avoid implicating First Amendment free speech rights online.

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The Spider’s Parlor: Government Malware on the Dark Web

Kaleigh E. Aucoin

Volume 69, Issue 5, 1433-1469

The United States government’s use of what it refers to as “Network Investigative Tools,” presents several constitutional and privacy-related issues. Revelations stemming from the use of these NITsa form of malwarewarrant a difficult discussion on the conflict between public transparency and the level of secrecy required to maintain effective law enforcement. It is especially difficult to focus upon this concern in the context of investigations tackling child pornography, given the unforgiveable nature of crimes against children, and the dire need to apprehend predators. However, the real unease is regarding how online surveillance is conducted, rather than that it is conducted at all. The problem is that unlike certain other forms of technology (for example, phones), there is currently no statutory framework in place to guide law enforcement, the courts, or the public for government hacking. This Note seeks to convey the importance of remaining unblinded by the ends and careful with the means so as not to conflate the significance of the need to capture serious offenders with the justification of ignoring civil liberties.

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