Hastings Law Journal最新文献

{"title":"State Wiretaps and Electronic Surveillance After September 11","authors":"C. H. Kennedy, Peter P. Swire","doi":"10.2139/SSRN.416586","DOIUrl":"https://doi.org/10.2139/SSRN.416586","url":null,"abstract":"This article examines the changing landscape for wiretaps and other electronic surveillance at the state level in the wake of the events of September 11. Based on available statistics, over two-thirds of law enforcement wiretaps in the United States in 2001 were authorized by state rather than federal judges, and there is evidence of significant under-reporting of state wiretaps. Part I of the Article explains the constitutional and statutory framework for government interception of: the content of a communication (\"wiretaps\"); to/from information (such as phone numbers or e-mail addresses); and stored communications records. Appendix A to the Article provides a survey and analysis of the interception, to/from, and stored records laws for all 50 states. Appendix B provides a survey of proposed and enacted changes to state laws in the initial period from September 11, 2001 to June 1, 2002. This research was performed on behalf of the Liberty and Security Initiative of the Constitution Project. Part II analyzes the proposed and enacted changes following September 11. Legislation principally addressed these issues: expanding the list of offenses eligible for interception orders; expanding the list of officials with wiretap authority; expanding the categories of persons who may execute wiretaps; authorizing roving and statewide surveillance; and expanding the types of communications and devices subject to interception. The conclusions in Part III highlight the weaker internal and external controls that apply to wiretaps and other electronic surveillance at the state level. At a formal/legal level, the Electronic Communications Privacy Act (ECPA) does provide that state wiretap laws may have effect only if they meet federal minimum standards for nature of the offense, minimization, and other features. Based on our review of state laws, however, we consider it likely that state wiretaps are systematically less subject to training requirements and other institutional controls on prosecutorial and police discretion. External controls are also likely more substantial at the federal level. Academics, the press, advocacy groups, and Congressional oversight have all provided important checks on any temptation by federal officials to overstep the limits of their surveillance powers. These oversight efforts are less developed in most states, and our research on state laws is intended in part to facilitate better understanding of how these laws in fact operate. A separate implication of this research concerns the interplay of federal and state surveillance law. Passage of the USA-PATRIOT Act in 2001 focused essentially exclusively on the scope of surveillance powers appropriate for federal officials. The preemption provision in ECPA, however, means that a change in federal law also permits an equivalent change in state law. Many of the bills recently proposed mirror the reduction of privacy rights in the USA-PATRIOT Act. In considering changes to federal survei","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"971"},"PeriodicalIF":0.5,"publicationDate":"2003-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68714445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trustwrap: The Importance of Legal Rules to Electronic Commerce and Internet Privacy","authors":"Peter P. Swire","doi":"10.2139/SSRN.424167","DOIUrl":"https://doi.org/10.2139/SSRN.424167","url":null,"abstract":"This Article puts forward two claims and one proposed new term. The first claim, buttressed by new evidence in this Article, is that we have under-valued the importance of binding legal rules in promoting electronic commerce (\"E-Commerce\"). The second claim is that, in light of the demonstrated helpfulness of binding legal rules, the case for Internet privacy legislation in the United States is stronger than it was during the start-up period of E-Commerce during the 1990s. The new term, which is central to both of these claims, is the idea of \"trustwrap\" - the ways that merchants can wrap their transactions in visible, trust-inspiring ways when conducting E-Commerce. The idea of trustwrap arose for me in thinking about the Tylenol scare in the early 1980s, when cyanide was injected into bottles of the medicine. Johnson & Johnson responded by re-engineering every sale of Tylenol. Today, every bottle of pills has a plastic wrap around the outside of the bottle. Every bottle has a foil seal inside the cap. Inside the bottle, the medicine exists in tamper-proof caplets or tablets, rather than the earlier capsules into which the malicious person had injected the poison. I propose the term \"trustwrap\" to bring together the physical transactions of Tylenol and the virtual transactions of E-Commerce. For my proposed use of \"trustwrap\", the seller demonstrates in the course of the transaction that there are legal, technical, or other protections for the purchaser. Moreover, the term \"trustwrap\" invokes the \"shrinkwrap\" and \"clickwrap\" licenses of modern E-Commerce. Part I of this Article looks at three of the striking success stories of E-Commerce - the online credit card, the growth of \"clicks-and-bricks\" E-Commerce (companies that sell both on the web and in physical stores), and eBay. Each of these three success stories contrasts markedly with the predictions of the Internet pioneers of the mid-1990s. I argue that each success story has created effective trustwrap for online transactions. Notably, the trustwrap in each instance depends substantially on enforceable legal guarantees. This evidence from the success stories on the Internet shows at least a strong correlation with, and quite likely causation from, the sorts of legal enforcement that many observers thought would be irrelevant for Internet commerce. Part II of the Article explores the implications of Part I on the debate about Internet privacy legislation. Based on my own experience as privacy counselor for the Clinton Administration, the debates on Internet privacy have often asked whether a legislative or self-regulatory approach will be more effective at fostering trust and encouraging E-Commerce. The success stories in Part I undermine the common view that binding legal rules will interfere with E-Commerce. In addition, a careful examination of our experiences with Internet privacy suggests that legal protections for privacy are more likely to be beneficial now than they would have been d","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"847"},"PeriodicalIF":0.5,"publicationDate":"2003-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68743413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privacy Wrongs in Search of Remedies","authors":"J. Reidenberg","doi":"10.2139/SSRN.434585","DOIUrl":"https://doi.org/10.2139/SSRN.434585","url":null,"abstract":"The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important enforcers against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"877"},"PeriodicalIF":0.5,"publicationDate":"2003-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68778402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance","authors":"P. Schwartz","doi":"10.2139/SSRN.425521","DOIUrl":"https://doi.org/10.2139/SSRN.425521","url":null,"abstract":"The legal systems of Germany and the United States contain detailed rules that regulate the surveillance of telecommunications by domestic law enforcement agencies. An initial question about this surveillance concerns the relative levels of such activity in Germany and the United States. This Article demonstrates, however, that the available statistics do not permit the drawing of conclusions about the relative amount of surveillance in the two countries. Any comparison based on these data sets proves to be illusory - the official statistics in Germany and the U.S. measure different phenomenon. Despite an absence of a basis for an empirical exploration of relative levels of telecommunications surveillance in Germany and the U.S., it is possible to compare the applicable legal regulations in the two countries. This Article examines both constitutional and statutory regulations. It finds that the U.S. Supreme Court has developed a restrictive vision of the Fourth Amendment that extends its protections only to telecommunications content, but not telecommunications attributes. In contrast, the German Federal Constitutional Court has interpreted Article 10 of the Basic Law, the postwar German constitution, as protecting not only telecommunications content but also telecommunications attributes. This Article also examines the statutory law that governs telecommunications surveillance in Germany and the U.S. It evaluates six categories: (1) legal protection for telecommunications information; (2) legal protection for connection data; (3) legal protection for stored data; (4) legal requirements for data retention or data erasure; (5) legal protection for contents of telecommunications; and (6) the nature of available remedies. In a final section, this Article examines three possible \"X factors,\" beyond the surveillance regulations expressed in legal regulations, that may affect law enforcement behavior in carrying out telecommunications surveillance in the two countries.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"751-751"},"PeriodicalIF":0.5,"publicationDate":"2003-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.425521","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68749420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates","authors":"Michelle Anderson","doi":"10.2139/SSRN.439504","DOIUrl":"https://doi.org/10.2139/SSRN.439504","url":null,"abstract":"Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she is giving her ongoing consent to sexual intercourse. Professor Michelle Anderson argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, Professor Anderson argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not married. The legal system often assumes that ongoing consent also exists between non-married intimates. Professor Anderson argues against the ideology of ongoing consent in both settings and proposes a new, single rule: evidence of a past or continuing sexual relationship between the complainant and the defendant is not itself a defense to a criminal sexual offense and, by itself, does not prove consent to the sexual act.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"1465"},"PeriodicalIF":0.5,"publicationDate":"2003-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.439504","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68787597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Identity Theft, Privacy, and the Architecture of Vulnerability","authors":"Daniel J. Solove","doi":"10.2139/SSRN.416740","DOIUrl":"https://doi.org/10.2139/SSRN.416740","url":null,"abstract":"This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual. In this Article, Professor Solove contends the traditional model does not adequately account for many of the privacy problems arising today. These privacy problems do not consist merely of a series of isolated and discrete invasions or harms, but are systemic in nature. They cannot adequately be remedied by individual rights and remedies alone. In contrast, Professor Solove proposes a different model for understanding and protecting against these privacy problems. Developing the notion of \"architecture\" as used by Joel Reidenberg and Lawrence Lessig, Solove contends that many privacy problems must be understood as the product of a broader structural system which shapes the collection, dissemination, and use of personal information. Lessig and Reidenberg focus on \"architectures of control,\" structures that function to exercise greater dominion over individuals. Solove argues that in addition to architectures of control, we are seeing the development of \"architectures of vulnerability,\" which create a world where people are vulnerable to significant harm and are helpless to do anything about it. Solove argues that protecting privacy must focus not merely on remedies and penalties but on shaping architectures. Professor Solove illustrates these points with the example of identity theft, one of the most rapidly growing types of criminal activity. Identity theft is often conceptualized under the traditional model as the product of disparate thieves and crafty criminals. The problem, however, has not been adequately conceptualized, and, as a result, enforcement efforts have been misdirected. The problem, as Solove contends, is one created by an architecture, one that creates a series of vulnerabilities. This architecture is not created by identity thieves; rather, it is exploited by them. It is an architecture of vulnerability, one where personal information is not protected with adequate security. The identity thief's ability to so easily access and use our personal data stems from an architecture that does not provide adequate security to our personal information and that does not afford us with a sufficient degree of participation in the collection, dissemination, and use of that information. Understanding identity theft in terms of architecture reveals that it is part of a larger problem that the law has thus far ignored. Solove then discusses solutions to the id","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"231 1","pages":"1227"},"PeriodicalIF":0.5,"publicationDate":"2003-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.416740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68714890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lifting the 'Fog' of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law","authors":"Orin S. Kerr","doi":"10.2139/SSRN.374282","DOIUrl":"https://doi.org/10.2139/SSRN.374282","url":null,"abstract":"This Article argues that the rules of Internet surveillance law remain obscure and undeveloped because of the remedies Congress has chosen to enforce its statutory standards. By rejecting a suppression remedy and embracing aggressive civil penalties, Congress has ensured that courts only rarely encounter challenges to Internet surveillance practices - and when they do, the cases tend to be in civil cases between private parties that raise issues far removed from those that animated Congress to pass the statutes. As a result, the courts have not explained how the complex web of surveillance statutes apply in routine criminal cases, and the rare judicial decisions construing the statutes tend to confuse the issues, not clarify them. This article argues that Congress should add a statutory suppression remedy to lift the fog of Internet surveillance law, and that such a change would benefit both civil liberties and law enforcement interests alike.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"805"},"PeriodicalIF":0.5,"publicationDate":"2003-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68633883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Truth in Government: Beyond the Tax Expenditure Budget","authors":"Julie Roin","doi":"10.2139/SSRN.350981","DOIUrl":"https://doi.org/10.2139/SSRN.350981","url":null,"abstract":"The tax expenditure budget recently has come under renewed attack. Some argue that its conceptual and implementational flaws justify discontinuing its publication. This paper points out the generality of these supposedly \"fatal\" flaws: all the sources of information we have about government spending suffer from problems similar if not identical to those identified in the tax expenditure budget. Take, for example, the absence of an agreed-upon baseline of a \"normal\" tax system against which to measure \"tax expenditures.\" A central theme of the paper is that the same baseline problem exists for several clear substitutes for tax expenditures, regulation and the non-enforcement of across-the-board rules. Even the seemingly obvious baseline of zero expenditures for determining the amount of cash subsidies can be challenged as incompletely theorized and misleading. The breadth and depth of the baseline and other problems identified in the tax expenditure budget throw into question the wisdom of excoriating it in particular. If improving the utility of information distributed about the direction and function of government is the desired end, the paper contends, one must focus on the interaction between the various information sources rather than the merits or demerits of any particular source of information. And once we do that, the argument continues, it becomes clear that the better path involves the publication of more, rather than less, information. In particular, the paper contends that it would be helpful to publish an admittedly flawed regulatory budget to serve as a companion to the tax expenditure budget.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"603"},"PeriodicalIF":0.5,"publicationDate":"2002-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68599871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should Directors Reduce Executive Pay","authors":"Randall S. Thomas","doi":"10.2139/SSRN.353560","DOIUrl":"https://doi.org/10.2139/SSRN.353560","url":null,"abstract":"This paper examines internal pay disparities in American public corporations and argues that wide gaps between the top and bottom of the pay scale can, in certain circumstances, directly and adversely affect firm value, that corporate boards should be informed about these effects, and that they should, in some cases, reduce internal pay differentials to address them. In support of this thesis, it analyzes numerous empirical studies that have shown that wide disparities in corporate pay scales can adversely affect firm value. These studies demonstrate that, at many types of organizations, as internal pay differentials grow, employees and lower level managers increasingly view themselves as being unfairly compensated in comparison to more highly paid top management. This perception adversely affects employee performance, productivity and willingness to work, and thereby reduces firm value. Directors' duty of care requires that they consider the spread between the high and low end of the corporate pay scale in setting firm compensation levels and act in the corporation's best interests to reduce it if necessary to maximize firm value. Moreover, mega-grants of stock options are primarily responsible for these growing pay differentials. Corporate directors are uninformed about the real costs and benefits of these huge awards. Mega-grants of stock options to corporate managers are unjustified if their uncertain benefits are exceeded by their costs. As virtually no research has shown that mega-grants of stock options' costs exceed their benefits, directors need to more carefully determine if these programs maximize firm value. Once again, directors' duty of care obligates them to be reasonably informed about the value of these plans as that constitutes material information about their firm.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"437"},"PeriodicalIF":0.5,"publicationDate":"2002-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Once More unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible","authors":"John Hasnas","doi":"10.2139/SSRN.349000","DOIUrl":"https://doi.org/10.2139/SSRN.349000","url":null,"abstract":"This article provides a comprehensive re-analysis of one of the thorniest problems of criminal jurisprudence, when it is proper to convict a defendant who has attempted the impossible. I begin by demonstrating that, contrary to received academic and judicial opinion, the common law defense of impossibility to a charge of attempt is both well-grounded and perfectly intelligible, being capable of accurate expression in a single sentence. I then account for the confusion regarding the defense by showing how the early courts that applied it were saying one thing while doing another, and how commentators and subsequent judges became misled by focusing on what the courts said rather than what they did. After showing that the defense is intelligible, I then show that it is normatively justified as well. I do this in two steps. First, I demonstrate that there is a principled distinction between moral and criminal responsibility, that the arguments for the rejection of the impossibility defense rest on an improper conflation of the two, and that a correct understanding of the nature of criminal responsibility undermines the force of these arguments. Second, I show that there is an inherent liberal bias built into the Anglo-American criminal law that supplies a principled basis for retaining the defense. I conclude the article by proposing a definition for attempt that both encompasses the defense and grounds it on a firm theoretical basis.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"54 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2002-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68598745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}