Fighting Fire with Fire: Technology in Child Sex Trafficking

We map real articulation data for five Swedish phonemen sequences onto parameters of a biomechanical tongue model that produces movement and muscle activations from position data. The movement produced is broadly correct and could likely be improved by a more fine tuned mapping. The muscle activations were found to vary between simulations using the same data but matched well with previous studies on muscle activity for vowels

Fighting Fire with Fire: Technology in Child Sex Trafficking

Mary G. Leary, Columbus School of Law at The Catholic University of Americ

The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post Google Earth World

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy. Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections. This article identifies this assault on the expectation of privacy due to “commercial conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these commercial induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced. This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data

Katz on a Hot Tin Roof: Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past. In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned - the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made. This article further develops the concept of “commercial conditioning,” and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded some of the procedural protections of the Fourth Amendment when the government accesses it - a protection not currently available to this private information. The Fourth Amendment is designed to protect individuals from government intrusion into private aspects of their lives. The Third Party and Assumption of Risk doctrines are designed to preclude individuals who never intended their actions to be private from claiming, after the fact, that they were private. However, as technology has developed, commercial entities have created a world in which the Fourth Amendment cannot protect individuals from government intrusion into their lives. Through their commercial conditioning of society, commercial entities have made it impossible to assert a Fourth Amendment claim in two ways. First they remove information from individuals without their knowledge or voluntary consent. By doing so, these entities preclude individuals from demonstrating subjective expectations of privacy, or expectation that society will find reasonable. Second, when the government later obtains this information, the government hides behind the Third Party Doctrine to justify its possession of the information. In essence the government has successfully circumvented Fourth Amendment protections. The pathway, however, was laid by the commercial entities that facilitate this reality through commercial conditioning. This article explores the implications of commercial conditioning. It further argues that restoration of the protections intended by the Fourth Amendment can be achieved by re-invigorating the voluntary consent aspect to privacy protection found in both the privacy cases as well as the Third Party Doctrine cases. These make clear that information obtained from an individual can come in two forms. The first is that which is voluntarily shared by him. The second is that taken from him. This article argues that courts must recognize that when the government systematically accesses information that was taken from an individual without knowledge or voluntary consent, that individual must be protected

Katz on a Hot Tin Roof: Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past. In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned - the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made. This article further develops the concept of “commercial conditioning,” and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded some of the procedural protections of the Fourth Amendment when the government accesses it - a protection not currently available to this private information. The Fourth Amendment is designed to protect individuals from government intrusion into private aspects of their lives. The Third Party and Assumption of Risk doctrines are designed to preclude individuals who never intended their actions to be private from claiming, after the fact, that they were private. However, as technology has developed, commercial entities have created a world in which the Fourth Amendment cannot protect individuals from government intrusion into their lives. Through their commercial conditioning of society, commercial entities have made it impossible to assert a Fourth Amendment claim in two ways. First they remove information from individuals without their knowledge or voluntary consent. By doing so, these entities preclude individuals from demonstrating subjective expectations of privacy, or expectation that society will find reasonable. Second, when the government later obtains this information, the government hides behind the Third Party Doctrine to justify its possession of the information. In essence the government has successfully circumvented Fourth Amendment protections. The pathway, however, was laid by the commercial entities that facilitate this reality through commercial conditioning. This article explores the implications of commercial conditioning. It further argues that restoration of the protections intended by the Fourth Amendment can be achieved by re-invigorating the voluntary consent aspect to privacy protection found in both the privacy cases as well as the Third Party Doctrine cases. These make clear that information obtained from an individual can come in two forms. The first is that which is voluntarily shared by him. The second is that taken from him. This article argues that courts must recognize that when the government systematically accesses information that was taken from an individual without knowledge or voluntary consent, that individual must be protected

The Indecency and Injustice of Section 230 of the Communications Decency Act

Section 230 of the Communications Decency Act is a 1996 law wholly inadequate to address 21st Century problems. The most egregious example of this is online sex trafficking, which was allowed not only to exist, but also to thrive due, in large part, to §230. This Article examines the development of the jurisprudence regarding online advertising of sex-trafficking victims and juxtaposes the forces that created § 230 with those preventing its timely amendment. This Article argues that, although § 230 was never intended to create a regime of absolute immunity for defendant websites, a perverse interpretation of the non-sex trafficking jurisprudence for § 230 created a regime of de facto absolute immunity from civil liability or enforcement of state sex-trafficking laws. This phenomenon occurred despite the legislative intent behind § 230, and despite the Trafficking Victims Protection Act of 2000 (“TVPA”) and its subsequent reauthorizations. This is the first law review article to examine the new Fight Online Sex Trafficking Act – Stop Enabling Sex Trafficking Act (FOSTA – SESTA) passed in March 2018, and signed into law in April 2018. The article not only examines this new effort, but also places it within a disturbing historical context concerning the origins and abuse of § 230. The article notes the quick willingness of Congress to respond to the desires of corporate technology interests to create § 230, but its failure to quickly respond to the pleas from victims of sex trafficking, law enforcement, states attorneys general, and the courts to amend it § 230 and preclude its abuse by online entities who knowingly partner with sex traffickers to sell victims online. The article analyzes not only why FOSTA-SESTA ultimately succeeded, but also the disturbing decades long obstacles to its common sense adoption. Part I explains the impetus behind § 230, its history, and its text. Part II examines the rise in recognition of sex trafficking in both domestic and international law. It further summarizes the contours of sex trafficking in the modern world and the role online advertisement has played in its emergence. Part III analyzes the intersection of sex trafficking, the Internet, and § 230 and thoroughly assesses the development of jurisprudence culminating in the creation of a regime of de facto immunity. Part IV analyzes recent legislative efforts in both the House and Senate to amend § 230 culminating in the passage of the FOSTA – SESTA. It asserts that such an amendment was necessary to return § 230 to its original purpose of protecting some Internet companies from specific types of liability, without creating absolute immunity. It also cautions against the ability of technology corporations to thwart such important legislation

The Supreme Digital Divide

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and government security interests felt more acutely than within the context of the Fourth Amendment.Notwithstanding the long duration of this struggle, jurisprudentially, the nation is at a critical point. Traditionally, the touchstone for analyzing the boundaries of Fourth Amendment searches is reasonableness. Quite literally, therefore, the Supreme Court has the task of determining the unanswerable: What is reasonable? This task, combined with the modern realities of rapidly changing technology, increased use of government surveillance, and changing expectations and conceptions of privacy, as well as differing perspectives of privacy in a heterogeneous society, becomes an even further complicated endeavor.One of the significant realities in play at this critical juncture lies within the Court itself. This Article asserts that there is a new, different form of the digital divide — the divide between the perspective of the Court and twenty-first century realities — which negatively impacts Fourth Amendment jurisprudence. This Article focuses on two specific aspects of that gap, arguing that this gap in experience and perspective contributes to false presumptions by the Court, which then leads to less than optimal opinions. Such an approach creates a veritable house of cards in which the opinions themselves are weakened and erode over time. The potential of the Court to add crucial guidance in the area of privacy law in contemporary society is immense. That being said, any constructive impact is compromised when the validity of the opinions precludes their ability to withstand the test of time.This Article discusses the gap generally, with specific attention paid to the divide between the Court and technological realities, and the gap between the Court and the realities of modern policing and pressures on law enforcement. The author argues that these divides result in opinions purporting to determine what is reasonable in modern life, but which rest upon a set of inaccurate presumptions. By analyzing Riley v. California, in which the Court held that the police may not dispense with the warrant requirement to search arrestees’ cell phones incident to arrest, this paper demonstrates examples of this gap. In particular, the article explores three inaccurate presumptions made in Riley, arguing that they contribute to a failed jurisprudence in this critical area. The article concludes by offering concrete steps to close the digital divide and allow the Court to more effectively influence this critical area of the law and modern life

Religious Organizations as Partners in the Global and Local Fight Against Human Trafficking

This paper explores the role of religious organizations as effective partners in the fight to end modern day slavery. As a crime with both global and local dimensions, trafficking must be combatted with tools that are both global and local. Such tools include the world’s religions and religious organizations. They have been addressing human trafficking for decades, and through their work with the poor, immigrants, and sexually exploited, they possess significant knowledge of the manifestations of this form of exploitation and can be important stakeholders in combating it. The paper concludes by offering several recommendations for how policymakers can deepen their anti-trafficking collaborations with religious organizations