N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: UCLA Cybersecurity Competition

The Threat of Geofence Warrants: Why Courts Should Deem Geofence Warrants Unconstitutional Under the Fourth Amendment

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On March 27, 2024

In Contributions

by Shirin Asgari*

Circuit courts are currently split on the constitutionality of geofence warrants. Geofence warrants grant law enforcement officers the power to access personal user data collected and stored by tech giants, such as Apple and Google. This Contribution considers the Fourth Amendment implications of geofence warrants and argues that such warrants are unconstitutional. First, given the Supreme Court’s previous reasoning under Carpenter v. United States,1 individuals have a reasonable expectation of privacy to their location information and other highly personal information attached to their accounts. Second, the nature of geofence warrants makes it impossible to establish probable cause over all individuals whose information is seized and searched beyond mere proximity, in violation of existing Supreme Court precedent established in Ybarra v. Illinois.2 Lastly, geofence warrants lack particularity and give law enforcement officers unbridled discretion to search an individual’s information, in clear violation of the Fourth Amendment.

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Press to Unlock: How Biometric Phone Locks Endanger Fifth Amendment Rights and Individual Privacy

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On November 22, 2023

In Contributions

by Aaron Chow*

Today, nearly every individual carries at all times an extremely detailed account of their personal lives: the contents of their cell phone. Due to recent advances in biometric scanning technology, cell phones can now be unlocked with a mere touch of a finger. Federal courts are currently divided on whether law enforcement may compel these fingerprint scans in order to access the potentially incriminating contents of an accused’s cell phone. Because a vast majority of Fifth Amendment jurisprudence predates the advent of modern cell phones, it is ill-equipped to address the risk of self-incrimination and privacy violations that fingerprint locks create. This Contribution argues that federal courts must adapt historical precedent in order to prevent unconstrained cell phone searches and to safeguard Fifth Amendment rights.

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The Constitutionality of Policing Technology: Evaluating Network Investigative Techniques Under Fourth Amendment Search Doctrine

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On November 15, 2022

In Contributions

by Madison Gonzalez*

Courts review the constitutionality of digital surveillance technologies in criminal investigations under Fourth Amendment search doctrine. In order to constitute a search, a law enforcement practice must either violate an individual’s reasonable expectation of privacy or constitute a physical trespass on private property. In this Contribution, Madison Gonzalez (’23) argues that the use of a Network Investigative Technique (“NIT”) to collect an Internet Protocol (“IP”) address directly from an individual’s computer is a Fourth Amendment search under either test.

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Preserving the Bivens Doctrine in the Fourth Amendment Context

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On October 4, 2022

In Contributions

by Tina LaRitz*

The Bivens doctrine allows plaintiffs who suffer constitutional violations at the hands of federal officers to claim monetary damages from federal courts, absent the statutory recognition of such a right. Recent jurisprudence has increasingly sought to limit this right in a show of judicial conservatism at the expense of deserving plaintiffs. This Contribution argues that the Bivens doctrine must be preserved broadly within the Fourth Amendment unreasonable search context.

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The Role of the Rule of Lenity and the Canon of Constitutional Avoidance in Interpreting the Computer Fraud and Abuse Act

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On May 2, 2022

In Contributions

by Rachel Sang*

The Computer Fraud and Abuse Act (“CFAA”), enacted in 1986, is a federal law that proscribes certain behavior involving unauthorized access to computers. Over time, a circuit split developed regarding the meaning of the CFAA’s “Access Provision.” The Supreme Court resolved this circuit split in its recent decision Van Buren v. United States. In this Contribution, Rachel Sang (’22) argues that although both the majority opinion and the dissent in Van Buren provide convincing textual interpretations of the statute, policy considerations, the rule of lenity, and constitutional concerns weigh in favor of the majority’s construction of the CFAA.

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