Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government’s ability to examine, investigate, and deter exercise of the freedom of association. Forward-looking surveillance has limits that don’t apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are procedural, such as the requirement that surveillance relate to criminal activity. In addition, surveillance such as wiretapping and using a GPS tracker often requires a warrant, involving review by a neutral magistrate. The warrant sets limits on what information may be collected, how it is collected, and how it can be used. The surveillance is also time limited and requires continual justification to a judge, or the surveillance will be shut down. With backward-looking surveillance all of these protections are gone. Anyone conducting surveillance can now use lowcost technology to track us or need only ask a business for the record of where we went, whom we called, what we read, and more. Revelation of the NSA’s vast PRISM surveillance project is but the most recent example of overreaching surveillance. The FBI has previously deployed programs to read mail, obtain lists of books read, demand member lists, and generate watch lists of people to round up in case of national emergency. The efforts vary; the harm is the same. With access to a myriad of our records, law enforcement or intelligence services have an almost perfect picture of our activities and associations regardless of whether they are criminal. With digital records these harms are more acute. Once the data about our activities is gathered, that data may be kept indefinitely. There is now a data hoard. Once created, the hoard can be continually rifled to investigate us but without any effective oversight. In short, data hoards present new ways to harm associational freedom. Yet, in the face of these new surveillance threats, our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech—the ability to meet or network and to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects associational activities, because they enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether an act is speech or is shared with others including third parties. The Article then examines the implications of the growing technology of backward-looking surveillance for Fourth Amendment jurisprudence. Notably, warrant procedures should be updated, building especially on the idea of return, which requires the government to return items taken as part of an investigation once they are not needed. In our new era of backward-looking surveillance, the idea of return requires deletion of data after an investigation. This shift will allow access to data but limit the ability to overreach and threaten associational freedom. When new surveillance techniques threaten associational freedom, they must be subject to proper constitutional limits. This Article explains why those limits are needed, when they must be in place, and how they operate

Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government’s ability to examine, investigate, and deter exercise of the freedom of association. Forward-looking surveillance has limits that don’t apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are procedural, such as the requirement that surveillance relate to criminal activity. In addition, surveillance such as wiretapping and using a GPS tracker often requires a warrant, involving review by a neutral magistrate. The warrant sets limits on what information may be collected, how it is collected, and how it can be used. The surveillance is also time limited and requires continual justification to a judge, or the surveillance will be shut down. With backward-looking surveillance all of these protections are gone. Anyone conducting surveillance can now use lowcost technology to track us or need only ask a business for the record of where we went, whom we called, what we read, and more. Revelation of the NSA’s vast PRISM surveillance project is but the most recent example of overreaching surveillance. The FBI has previously deployed programs to read mail, obtain lists of books read, demand member lists, and generate watch lists of people to round up in case of national emergency. The efforts vary; the harm is the same. With access to a myriad of our records, law enforcement or intelligence services have an almost perfect picture of our activities and associations regardless of whether they are criminal. With digital records these harms are more acute. Once the data about our activities is gathered, that data may be kept indefinitely. There is now a data hoard. Once created, the hoard can be continually rifled to investigate us but without any effective oversight. In short, data hoards present new ways to harm associational freedom. Yet, in the face of these new surveillance threats, our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech—the ability to meet or network and to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects associational activities, because they enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether an act is speech or is shared with others including third parties. The Article then examines the implications of the growing technology of backward-looking surveillance for Fourth Amendment jurisprudence. Notably, warrant procedures should be updated, building especially on the idea of return, which requires the government to return items taken as part of an investigation once they are not needed. In our new era of backward-looking surveillance, the idea of return requires deletion of data after an investigation. This shift will allow access to data but limit the ability to overreach and threaten associational freedom. When new surveillance techniques threaten associational freedom, they must be subject to proper constitutional limits. This Article explains why those limits are needed, when they must be in place, and how they operate

Confronting the Genericism Conundrum

Recent lawsuits and articles have drawn attention to a growing issue in intellectual property law, the aggressive and arguably abusive tactics of intellectual property (“IP”) rights holders. In the trademark context, some maintain and there are arguments to support the idea that trademark holders bring these actions as a means of manipulating the public through direct control of the public’s ability to use language. Nonetheless, assuming trademark holders and their counsel are acting at some level of good faith and are rational, something else in the law itself may be driving this otherwise questionable behavior. This paper argues that the doctrine of genericism—under which a court may determine a previously valuable mark is or has become generic, thus losing all trademark status and value—as it is currently applied forces the trademark holder to police her rights in this extreme manner for fear of losing her mark. Specifically, this paper investigates the theoretical and historical evolution of the doctrine and posits that current genericism doctrine has strayed far from its roots, which are in consumer understanding in the marketplace and enhancing competition, and now concerns itself with an inappropriate property type of analysis that places great weight on non-commercial and/or non-competitive trademark use contexts (e.g., dictionary entries, newspapers, noncompetitive third-party uses). This focus leads to inefficient results, i.e., trademark holders engaging in extensive advertising, letter campaigns, and litigation to try to protect the mark and prevent it from being deemed generic. As such this paper argues that the doctrine should be re-anchored to focus on the mark’s ability to act as a source identifier for the consumer in commercial contexts. Re-focusing genericism on consumer contexts rather than non-consumer, expressive contexts will allow the analysis to embrace a more sophisticated, broad understanding of trademarks. This approach recognizes a term’s ability to perform more than one function in language depending on the user of the term and the context of the term’s use. In addition, this revised understanding of genericism would undermine trademark holders’ ability to claim the need to engage in what would otherwise be frivolous and/or abusive enforcement strategies, because they could no longer hang their collective hat on the excuse that they were required to do so to avoid falling victim to genericism. In short, this retooling of the doctrine would allow trademark owners to enjoy the full benefits of the source identifying functions of their marks while at the same time creating a space in which the public may enjoy full use of the terms without fear of reprisal by mark owners

Epidemiology of fractures in indoor patients at a tertiary care centre in India: a study of 3000 cases

Background: Implementing appropriate fracture control measures and treatment protocols is crucial to maximizing health and development gains. This requires an in depth understanding of age-specific, sex-specific and cause-specific injury patterns at the national and subnational levels. No such study on fracture epidemiology has been undertaken in the Indian population.Methods: Study was conducted in a tertiary care centre (KEM hospital, Mumbai) which is one of the highest volume trauma centres in the country. Data of 3000 patients was obtained from the medical records department for the year 2016-2019. Patients were segregated with respect to their genders and into three age groups. Etiology of fracture was noted, and fractures classified according to the anatomical area. Whether the patient received conservative or operative management was also recorded.Results: 43.83% of the fractures occurred in 18-50 years age group. 41.33% in the above 50 group and only 14.73% in the below 18 age group. Overall male to female ratio was 1.4: 1. Vehicular accident was the most common mode of injury (47.07%) followed by fall from height (21.03%). Proximal femur fractures were the most common accounting for 19.57% of all fractures followed by forearm (10.53%), tibia diaphysis (8.10%). Talus was the least common. 81.07% cases were managed operatively and 18.93% conserved.Conclusions: Our study highlights that Indian epidemiology is unique from our Western counterparts. Population affected is much younger, old age males are affected more than females. Lower limb fractures are more prevalent and road traffic accidents are responsible for almost half the fractures