A Reply to Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective

In response to Rishi Raj Batra, Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective, 76 Ohio St. L.J. 565 (2015)

Beware of Government Agents Bearing Trojan Horses

This Article addresses the use of Trojan devices by the Government to legally search computers potentially around the world. Although the Government does seek judicial authorization for these techniques based on a search warrant, there are still concerns about whether the applications meet constitutional standards as well as Rule 41 of the Federal Rules of Criminal Procedure (“Rule 41”). The use of these Trojan devices has not been addressed in current scholarship meaningfully; therefore, this Article focuses on when and how authorization of search warrant applications for these techniques are appropriate. Part II addresses the implications of the standards enunciated in the Fourth Amendment and Rule 41 in ascertaining whether a search warrant should be issued. Next, Part III discusses four search warrant applications seeking authorization for the techniques discussed in Part II and analyzes whether the search warrants were appropriate. Finally, in Part IV, the Article concludes by addressing the privacy concerns that put these search methods in direct opposition with both constitutional protections and procedural requirements for search warrants. The Article proposes solutions to avoid the overreaching and invasive concerns that the use of Trojan device search methods can create

Spies in the Skies: Dirtboxes and Airplane Electronic Surveillance

Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have used dirtboxes. These dirtboxes are manufactured by Digital Receiver Technology (DRT), a subsidiary of Boeing. Dirtboxes get their name based on the acronym of the three letters. The U.S. Marshals Service uses these dirtboxes to gather information on the locations or the cell phone numbers of criminal suspects and fugitives

Supreme Court Jurisprudence of the Personal in \u3cem\u3eCity of Los Angeles v. Patel\u3c/em\u3e

Recently, the Supreme Court issued a 5-4 decision in City of Los Angeles v. Patel striking down a city ordinance that required hotel and motel owners to make their guest registries available to police officers whenever requested to do so. Although the Court’s opinion in Patel simply affirmed the Ninth Circuit’s finding that the ordinance was unconstitutional, the Court could have used Patel to readdress the third-party doctrine, which establishes that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Patel provided a vehicle for the Court to do so, particularly because recent Supreme Court decisions suggest that the Court is concerned about the third-party doctrine’s applicability to broad and warrantless searches of private information. For example, in United States v. Jones, the Court held law enforcement’s use of a GPS tracking device to monitor a suspect’s public movements constituted a search pursuant to the Fourth Amendment. Additionally, in Riley v. California, the Court held that, absent exigent circumstances, law enforcement may not search a suspect’s cell phone without a warrant and probable cause. 3 In both cases, the Court could have applied the third-party doctrine and held that citizens forfeit any expectations of privacy when they travel in public spaces or transmit information that a third party can access. As evident in Jones and Riley, the Justices value their privacy as much as most people and could have used Patel to further safeguard it when dealing with potential breaches that have real-world possibilities for them

British and Indian Activities in Spanish West Florida During the War of 1812

When Britain lost control of Florida in 1783 to Spain, many English merchants and public officials, especially the governors of Jamaica and New Providence, did not consider the loss of Florida as permanent. They continued an extensive legal and illegal trade with the Indians in Florida and the southern United States. The mouth of the Apalachicola River and the area around it comprised one of the main seats of this commerce, especially the illegal part. In line with their objectives of regaining control of Florida, these various British officials and merchants sent such filibusterers as William Augustus Bowles, who plotted to create an independent Indian state or possibly to reannex the area to Britain. In an effort to halt the illegal trade and to prevent seizure of the area, the Spanish constructed a fort at Apalachee. The forces of Spain, however, were spread far too thin to man the post properly, and there is little evidence that the existence of the fort had much effect on the trade