Sea Change: the Legal Implications of Climate Change for Island States

Earlier this month, the intergovernmental 44th Pacific Islands Forum convened in the Marshall Islands to discuss the affairs of 16 sovereign states in the Pacific Ocean. Members of the Forum include Australia, the Federated States of Micronesia, Fiji and Samoa. Discussions at the Pacific Islands Forum covered a wide variety of economic, political and strategic topics, but the major focal point of the Forum concerned climate change. The topic of climate change is one that Continue Reading →

Client Confidentiality and the NSA: May attorneys still use unencrypted email?

Lawyers handling client data are under an obligation to protect the privacy of that data. State and ABA ethics opinions have approved of correspondence over unencrypted email, deciding that in most cases such communication is consistent with the lawyer’s privacy obligation. However, those opinions were based on an understanding of privacy law that preceded the recent revelations about government storage and tracking of email under the authority of FISA and the PATRIOT Act. It may Continue Reading →

New Jersey Supreme Court Rules that Warrants are Required to Electronically Track Cell Phone Data

The New Jersey Supreme Court recently held that law enforcement officials must obtain a warrant before electronically tracking a suspect’s cell phone. In State v. Earls, the court stressed that users are entitled to a reasonable expectation of privacy in the level of detail cell phone data can reveal about their lives. This holding applies both to tracking using data from cell towers and tracking using GPS technology from the cell phones themselves. The court Continue Reading →

There’s No App For That: Smartphone Data Privacy and Law Enforcement Searches

Smartphones have become repositories for vast amounts of personal information.  As their functionality grows, users store more and more of their details in their smartphone, from friends’ phone numbers, diary entries, photos, and messages, to shopping lists, bank details, and travel plans.  At the same time, phone manufacturers and app designers silently gather data on users’ movements, browsing habits and passwords.  The resulting bounty of data is extremely convenient for users, but also makes smartphones Continue Reading →

Facial Recognition Technology and the Next Generation Identification System

Facial Recognition Technology requires a photographic camera combined with face recognition software. The software identifies human faces captured by the camera, and quantifies them using an algorithm. The algorithm measures “nodal points” on the face, such as the distance between the eyes, cheekbone shape, nose width, and jaw shape. The combination of the nodal points becomes a person’s “faceprint”. The Federal Bureau of Investigation (FBI) has announced that it will use Facial Recognition Technology in Continue Reading →

Privacy and the Cloud

With the increased use of cloud storage new questions have arisen related to the privacy and confidentiality of files stored remotely. Although file storage on remote servers is not a new creation, many of the legal doctrines surrounding privacy and confidentiality of files were created without use of the cloud in mind and have not adapted to the expanded use of the cloud. While cloud storage can be an economical and practical method for storing Continue Reading →

Forced Decryption and the 5th Amendment: Analytical Issues in the 11th Circuit’s Recent Decision

Last Thursday, the Wall Street Journal and Volokh Conspiracy reported that the Court of Appeals for the Eleventh Circuit recently decided that forcing a suspect to decrypt and provide a hard drive when the government did not already know what it contained violates the suspect’s Fifth Amendment protection against self-incrimination. While most of the Court’s analysis seems correct, I have a few problems with some parts of the analysis and have tried addressing these issues Continue Reading →