Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to their appropriate limits. The Article examines this category of noncustodial pre-crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect

Supreme Court of Canada on the Appropriateness and Scope of a Global Website Takedown Order

In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google\u27s search engines whether accessed from google.ca, google.com, or any other entry point. Google objected. The Canadian Supreme Court, along with the two lower Canadian courts that considered the issue, sided with Equustek. The ruling sets up a potential showdown between Canadian and U.S. law and raises critically important questions about the appropriate geographic and substantive scope of takedown orders, the future of free speech online, and the role of intermediaries such as Google in preventing economic and other harms

Transnational Seizures: The Constitution and Criminal Procedure Abroad

https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1218/thumbnail.jp

Microsoft Ireland, the CLOUD Act, and Access to Data Across Borders

https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1215/thumbnail.jp

Microsoft Ireland, the CLOUD Act, and Access to Data Across Borders

https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1215/thumbnail.jp

Data Warrants From Across the Pond: Fighting Crime While Preserving Privacy

[speaker] Jennifer Daskal, Associate Professor of Law, American University. Fighting crime and thwarting terrorism is not what it was 20 years ago. Globally, law enforcement agencies are demanding more and more ready access to social media company data about customers — most of which is held by U.S.-based Internet giants like Google, Facebook, Twitter and Snap. However, expedient access to that data is hampered by privacy rules and our Constitution’s 4th amendment. Now, the U.S. Department of Justice, working with allies around the globe, have proposed that Congress streamline the rules so that foreign police agencies could access social media data more quickly. The fix would require updating the the Electronic Communication Privacy Act (ECPA), which many critics say is outdated. Our panel will explore the pros and cons of this proposed fix and what it means for Congress, for U.S. citizens, and for U.S. Internet companies

Incidental Foreign Intelligence Surveillance and the Fourth Amendment

https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1217/thumbnail.jp