Author: JOLT Page 38 of 50

The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation

By: Micala MacRae, Associate Notes and Comments Editor

The Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.[1] The rise in social media has created a new medium through which workplace harassment occurs. Courts are just beginning to confront the issue of when social media harassment may be considered as part of the totality of the circumstances of a Title VII hostile work environment claim. Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace. However, the changing nature of the workplace has continued to expand with the rise of new technology, which allows employees to stay connected to the work environment at different locations outside the physical boundaries of the office. Harassment has moved beyond the physical walls of the workplace to the virtual workplace. The broadening conception of the workplace and increasing use of social media in professional settings has expanded the potential employer liability under Title VII.

Social media has become a powerful communication tool that has fundamentally shifted the way people communicate. Employers and employees increasingly utilize social media and social networking sites.[2] While companies have turned to social media as a way to increase their business presence and reduce internal communication costs, there has been the consequence of increased social media harassment. Although social media and social networking sites are not new forms of communication, their legal implications are just now coming into focus.[3] Several cases have addressed hostile work environment claims stemming from other forms of electronic communication, there are few addressing claims based on social media communications.[4]

The New Jersey Supreme Court, in Blakey v. Continental Airlines, Inc., was one of the first courts to consider whether an employer is responsible for preventing employee harassment over social media.[5] In Blakey, an airline employee filed a hostile work environment claim arising from allegedly defamatory statements published by co-workers on her employer’s electronic bulletin board.[6] The electronic bulletin board was not maintained by the employer, but was accessible to all Continental pilots and crew members.[7] Employees were also required to access the Forum to learn their flight schedules and assignments.[8]

The court analyzed the case under a traditional hostile work environment framework, concluding that the electronic bulletin board was no different from other social settings in which co-workers might interact.[9] Although the electronic bulletin board was not part of the physical workplace, the employer had a duty to correct harassment occurring there if the employer obtained a sufficient benefit from the electronic forum as to make it part of the workplace.[10] The court made clear that an employer does not have an affirmative duty to monitor the forum, but that liability may still attach if the company had direct or constructive knowledge of the content posted there.[11] The court limited consideration of social media harassment to situations where the employer derived a benefit from the forum and it could therefore be considered part of the employee’s work environment.[12]

Workplace harassment is not longer limited to the traditional four walls of the workplace. As technology and the boundaries of the workplace have changed, courts have struggled to modernize their framework for assessing hostile work environment claims under Title VII. These problems will only become exacerbated as society continues to embrace social media throughout our daily lives and employers continue to integrate social media into their business practices.

[1] See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (finding that workplace harassment based on individual’s race, color, religion, sex, or national origin is actionable under Title VII of the Civil Rights Act).

[2] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[3] See, e.g., Kendall K. Hayden, The Proof Is in the Posting: How Social Media Is Changing the Law, 73 Tex. B.J. 188 (2010).

[4] Id.

[5] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[6] Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).

[7] Id. at 544.

[8] Id.

[9] Id. at 549.

[10] Blakey, 751 A.2d at 551.

[11] Id.

[12] Id.

Blog: The New Meaning of Back Seat Driving

By JOLT

On February 16, 2015

In Blog Posts

By: Peyton Stroud, Associate Notes and Comments Editor

Are we there yet? The common adage of road trips has a whole new meaning with the advent of driverless cars. Imagine a world where the front seat driver can face the backseat passengers, with the car driving itself down the highway. As of this past January, this dream is becoming a reality. Automotive giants such as BMW, Audi, and Mercedes-Benz unveiled prototypes of self-driving technologies in the recent 2015 Consumer Electronics Show (CES).[1] These new vehicle models function autonomously while allowing its passengers to sit back and relax. Industry experts expect these driverless vehicles to be on the road between 2017 and 2020.[2]

Many current models of cars are already featuring some self-driving technologies including automatic braking systems, adjustable cruise controls, and 360° cameras capable of stopping collisions while at low speeds.[3] However, this year’s CESs brought more to the table than ever before. During this year’s CES, Audi unveiled its self-driving car, nicknamed “Jack,” using its system known as the company’s Piloted Driving system.[4] “Jack” drove an astounding 560 miles to the CES, more than any driverless car has driven before. Its state of the art system incorporates a series of sensors and laser scanners allowing the car to drive itself in speeds of up to 70 mph.[5] The Piloted Driving system is intended to be used for highway driving and does not work as well in urban environments, where drivers need to be at the wheel.[6] Similarly, Mercedes-Benz introduced its driverless model called the Mercedes-Benz F105 Luxury in Motion.[7] Its new features include a self-driving technology and a zero carbon emissions system, but most notably a new interior design.[8] The new design allows for the vehicle’s front seats to swing around and face backwards while the vehicle drives its passengers on the highway.[9]

Other technology developers are joining forces with car manufactures to help advance this technology.[10] Nvidia, a large computer chip manufacturer, has introduced the Tegra X1 chip equipping vehicles with deep neural learning, which allows for recognition of pedestrians, cyclists, and other vehicles. More technological innovations on the horizon include systems setting a predetermined route, more adjustable cruise controls, and self-parking technologies.[11]

Legally, self-driving smart cars could pose some significant problems in both the regulatory and data privacy realm.[12] In a regulatory sense, there are currently no transportation laws regarding self-driving cars.[13] Furthermore, others remain weary of the “data collection” required by the cars. [14] However, the most profound legal implication could be liability ridden – Who is responsible when something goes wrong? More specifically, who is liable if a self-driving cars hits and kills someone? Who is responsible for the parking ticket when the car did not recognize a no parking sign?[15] Only four states and the District of Columbia have addressed laws regarding self-driving vehicles.[16] Some of these states have passed laws allowing manufacturers solely for testing purposes.[17] In an effort to predict the legal implications of these new cars, lawyers look to current liability laws for guidance.[18] For example, in cases of parking tickets, the owners of the car will be liable.[19] In cases of injury, product’s liability law will most likely govern cases of injury thereby allowing the victim to sue both the owner of the car and also the car’s manufacturer. According to Professor John Villasenor, “product liability law, which holds manufacturers responsible for faulty products, tends to adapt well to new technologies.”[20] Furthermore, Sebastian Thrun, inventor of driverless cars, opines that these driverless cars could help in reconstructing accidents and making assignment of blame more clear-cut.[21] In his view, the trial lawyers are the ones in trouble.[22]

However, criminal penalties pose a more significant problem than civil penalties.[23] Since criminal law centers around the intent of the perpetrator, it will be difficult to figure out how to adapt these laws to technology because robots cannot be charged with a crime.[24] Further, “the fear of robots” and of a machine malfunctioning raise concerns for the American public.[25] However, it seems as if Americans are willing to take the risk. According to the Pew Research Center, nearly half of Americans would ride in a driver-less car.[26] Time will tell if these self-driving cars will endure public scrutiny.

[1] See Steve Brachmann, Self-driving Cars and Other Automotive Technologies Take Center Stage at CES, IPWatchdog.com (Jan. 11, 2015), http://www.ipwatchdog.com/2015/01/11/self-driving-cars-center-stage-at-ces/id=53480/.

[2] Bill Howard, Self-driving Cars Are More Than A Promise, Extreme Tech (Jan. 12, 2015, 11:45 AM), http://www.extremetech.com/extreme/197262-its-2015-self-driving-cars-are-more-than-a-promise.

[3] Brachmann, supra note 1.

[4] Id.

[5] Brachmann, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See Howard, supra note 3.

[11] See id.

[12] See id.

[13] See id.

[14] Id.

[15] See Claire Cann Miller, When Driverless Cars Break the Law, N.Y. Times (May 13, 2014), available at http://www.nytimes.com/2014/05/14/upshot/when-driverless-cars-break-the-law.html?_r=0&abt=0002&abg=0.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] Miller, supra note 11 (quoting John Villasensor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings (Apr. 2014), available at http://www.brookings.edu/~/media/research/files/papers/2014/04/products%20liability%20driverless%20cars%20villasenor/products_liability_and_driverless_cars.pdf).

[21] See Miller, supra note 11.

[22] See id.

[23] Id.

[24] See id.

[25] Miller, supra note 11.

[26] See id.

Merger and Acquisition Due Diligence: A Proposed Framework to Incorporate Data Privacy, Information Security, E-Discovery, and Information Governance into Due Diligence Practices

By JOLT

On February 14, 2015

In Article

An Uneasy Balance: Personal Information and Crowdfunding Under the JOBS Act

By JOLT

On February 13, 2015

In Article

Blog: How Technology is Helping Catch Child Sex Traffickers

By JOLT

On January 28, 2015

In Blog Posts

By: Bradford Schulz, Associate Staff

Drugs. Guns. Trafficking. Human trafficking is the third-largest criminal enterprise in the world.[1] Specifically, sex trafficking is the fastest-growing enterprise in the world.[2] It is estimated that 60% of all human trafficking victims were trafficked for sexual purposes, and the FBI has reported that cases of sex trafficking involving children are increasing.[3] In fact, it is estimated by the State Department that a third of teens, 150,000 annually, who run away from home are trafficked within 48 hours.[4] “Lisa” (fictional name for J.S. in State v. Hopson) was one of these children who ran away from home and got caught up in sex trafficking.[5]

In March 2010, a 15-year old Lisa left home so that she could “find herself.” In an effort to make enough money to drive to California, Lisa prostituted herself out for Mr. Hopson.[6] Hopson taught Lisa how to handle payments, how to check if a customer was a police officer, and how to avoid identification.[7] In addition, Hopson posted daily advertisements on “backpage.com” which often showed Lisa posing on pool tables.[8] Backpage.com has developed a nationwide online reputation as a sex prostitution marketplace.[9]

In September 2010, a 13-year old “Briana” (fictional name for S.L.) ran away from home and was picked up by traffickers.[10] The sex traffickers dressed Briana in lingerie, took photos of her, and posted her advertisements on backpage.com. It is a similar story for “Tasha” (fictional name for L.C.) who also had photographs of her taken while wearing skimpy clothing, and was featured in online advertisements.[11] All girls were prostituted and raped via online advertisement brokering.

Backpage.com is an online marketplace (i.e. Craigslist), that also includes “escort” sections that solicit advertising of escort services. The website is organized by geographic locations to help filter searchers to nearby services. It is argued that backpage.com uses the term “escort” in order to provide listings of prostitution and sex trafficking sale advertisements with some deniability.[12] Backpage.com provides posting rules and lists content requirements that prohibit the use of profanity, graphic images, or the collaboration of illegal services and trafficking. However, a trial court noted that almost every advertisement post in the “escort” section violates backpage.com’s posting and content rules.[13] In an effort to minimize child sex trafficking, the three victims are attempting to shut down backpage.com because it hosted their pimps’ escort solicitation.

Backpage.com argues that its website is protected by free speech and § 230 of the Communications Decency Act.[14] The CDA was written to protect internet sites, such as Google, Wikipedia, Twitter, Youtube, and Craigslist, from liability of content posted by third parties. The statute states that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.”[15] So the question is, does CDA § 230 immunize websites from liability for third-party content even though “the unlawful nature of information provided is not enough to make it the [website’s] own speech.”[16] Backpage.com is more than allowing third-party flagrant free speech on its website; it is arguably facilitating the pimping of under age children. The real question is not whether Backpage.com is protected by free speech but whether their actions go beyond speech. This issue is up for consideration by the Supreme Court of Washington State.[17]

In addition to litigation, groups focused on stopping child sex trafficking have established the Human Exploitation Rescue Operative (HERO) Child-Rescue Corps. HERO is a program developed by the U.S. Immigration and Customs Enforcement (ICE) to provide wounded special operations forces training in computer forensics and law enforcement.[18] The goal of HERO is to incorporate special op wounded soldiers into the law enforcement effort to stop online child sex trafficking by supplementing their skill set with computer forensic training (“image and process digital media,… assisting investigators in identifying “high-value targets and locate child victims”).[19] By utilizing their military training, coupled with advanced computer forensics, ICE hopes that the HERO operatives will be able to help track down victims and help prosecute child sex traffickers.

Technology in various forms is at the forefront of the child sex trafficking issue.
Just as technology and online websites streamline “escort” business, so too will technology help facilitate the prosecution of child sex traffickers.

[1] The UN Refuge Agency, Conference puts focus on Human Trafficking, fastest Growing Criminal Industry, (Oct. 11, 2010), http://www.unhcr.org/4cb315c96.html.

[2] FBI Law Enforcement Bulletin: Human Sex Trafficking, Mar. 2011, http://www.fbi.gov/statsservices/publications/law-enforcementbulletin/march_2011/human sex trafficking.

[3] United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons at 35 (2012); Traff1ckinR in Persons Report, 2013 U.S. Dep’t of State Ann. Rep. 382-83.

[4] Online and Anonyrnous: New Challenges to Prosecuting Sex Trafficking (NPR radio broadcast Aug. 3, 2013), (available at http://npr.org/templates/transcript/transcript.php?storyld=208664066 (“Online and Anonymous”)).

[5] State v. Hopson, 170 Wash. App. 1012 (2012).

[6] Id.

[7] Id

[8] Id.

[9] Id.

[10] Brief of Respondents, Village Voice Media Holdings, L.L.C. and Backpage.com v. J.S., S.L., and L.C., No. 90510-0, Supreme Court of the State of Washington.

[11] Id.

[12] Id.

[13] Verbatim Report of Proceedings, 49: 14- 50: 12.

[14] 47 U.S.C. § 230.

[15] 47 U.S.C. § 230(c)(1).

[16] Universal Commc ‘n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007).

[17] Brief of Petitioners, Village Voice Media Holdings, L.L.C. and Backpage.com v. J.S., S.L., and L.C., No. 90510-0, Supreme Court of the State of Washington.

[18] U.S. Immigration and Customs Enforcement, HERO Child-Rescue Corps Program, http://www.ice.gov/hero.

[19] Id.

Blog: Is it a Bird? A Plane? No, it's a Drone

By JOLT

On January 23, 2015

In Blog Posts

By: Arianna White, Associate Staff

As a child, I spent many afternoons with my father and his two helicopter-enthusiast brothers. We would go to the park and launch remote controlled helicopters and rockets in to the sky. We flew the large, complex kind of helicopters that could drop packages from great heights and do flips while in the air. Although craft helicopters are less in vogue today than they were twenty years ago, other small-scale flying devices have recently returned to popular consciousness. I’m talking, of course, about drones.

When thinking about drones, many people imagine their military application. Otherwise known as predator drones and Unmanned Combat Aerial Vehicle (UCAV), these machines are used to perform precise strikes of enemy targets.[1] The use of these drones relies on information gathered by intelligence agencies to identify targets, and a remote operator who controls the drone’s movements.[2]

Beyond their common conception, however, the term drone refers to a larger class of Unmanned Aircraft Systems that have both public and private applications in the United States.[3] Many Police departments, like the New York City Police Department, use drones to survey the public under the pretext that drones are intended to “check out people to make sure no one is… doing anything illegal.”[4]

Corporations and personal enterprises have also determined that drones can serve in varied, but important roles. Amazon, for example, is interested in using drones for package delivery and has asked the Federal Aviation Administration (FAA) for permission to develop and test a drone program.[5] While the FAA has yet to issue the necessary license to Amazon, the company persists in its request that the agency permit its use of drones.[6]

Mexican drug cartels have also developed drones to deliver packages, although their program follows a decidedly less legal route than Amazon’s.[7] On January 19, 2015, a drone carrying nearly six pounds of methamphetamine crashed in a Mexican city along the Mexico-US border.[8] In early 2015, a South Carolina man received a fifteen-year prison sentence for his attempt to deliver contraband to a South Carolina Prison.[9] The crashed drone carried marijuana, cell phones and tobacco on to the prison’s grounds, although the delivery was never received by any of the prison’s inmates.[10]

Given the proliferation of unmanned aircraft, both sophisticated and home made, the FAA lacks a sophisticated policy that effectively regulates their use. While the “current FAA policy allows recreational drone flights in the U.S.[, it] essentially bars drones from commercial use.”[11] Although industry analysts expected the FAA to publish its proposed rules by the end of 2014 and begin the notice and comment period, the agency did not meet that goal.[12] In fact, Gerald Dillingham, the GAO ‘s director of civil aviation said that the “consensus of opinion is the integration of unmanned systems will likely slip from the mandated deadline [and not be finalized] until 2017 or even later.”[13]

During the 112th legislative session, Congress passed the FAA Modernization Act of 2012.[14] The act was designed to, among other non-drone-related purposes, “encourage the acceleration of unmanned aircraft programs in U.S. airspace.”[15] Agency guidelines, in place since 1981, currently control the use of personal unmanned aircraft.[16] Of these, individuals are prohibited from “flying above 400 feet, near crowds, beyond the line of sight or within five miles of an airport.”[17] These types of guidelines seem reasonable and appropriate to regulate small scale, personal model aircraft and drone use.

However, there is a glaring need for federal policy that addresses and regulates the commercial use of drones. In the absence of such a policy, local governments have begun to fill the gaps that the FAA left behind. According to the New York Times, “At least 35 states and several municipalities have introduced legislation to restrict the use of drones in some way.”[18] These different laws serve various functions, including governing the permissible police uses of drones, defining what type of use constitutes unlawful surveillance, and determining the punishments allowable for violations of the particular law.[19] By allowing individual local governments to determine their own rules, in the absence of a federal standard, the FAA has missed the opportunity to both promote nationwide responsible drone use and ensure their safe, uniform use across the country. While other countries, like Canada, Australia, and the United Kingdom have already begun enacting laws that allow commercial use of drones,[20] the United States is still stuck in 2012.

[1] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[2] http://www.nytimes.com/2012/05/01/world/obamas-counterterrorism-aide-defends-drone-strikes.html?_r=1

[3] Federal Aviation Administration. Unmanned Aircraft Systems. https://www.faa.gov/uas/.

[4] https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf

[5] www.cnet.com/news/amazon-asks-faa-to-let-it-ramp-up-drone-developments/

[6] http://www.regulations.gov/#!documentDetail;D=FAA-2014-0474-0014

[7] http://thetequilafiles.com/2014/07/10/mexican-cartels-building-drones-to-traffic-drugs-into-the-us/

[8] http://www.latimes.com/world/mexico-americas/la-fg-mexico-meth-drone-20150121-story.html

[9] http://www.greenvilleonline.com/story/news/crime/2015/01/20/man-receives-years-flying-drone-sc-prison/22053651/

[10] http://www.washingtonpost.com/news/post-nation/wp/2014/07/31/a-delivery-drone-carrying-marijuana-cell-phones-and-tobacco-crashed-outside-of-a-s-c-prison/

[11] http://www.wsj.com/articles/drone-flights-face-faa-hit-1416793905

[12] http://www.bloomberg.com/news/2014-12-31/faa-fails-to-meet-2014-goal-for-proposed-drone-regulations.html

[13] http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/the-faa-wont-make-up-its-mind-on-drone-rules-until-2017-at-the-earliest/

[14] https://www.congress.gov/112/plaws/publ95/PLAW-112publ95.pdf

[15] http://www.npr.org/2012/04/17/150817060/drones-move-from-war-zones-to-the-home-front

[16] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[17] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html, http://www.faa.gov/uas/publications/model_aircraft_operators/

[18] http://www.nytimes.com/2014/12/07/sunday-review/things-to-consider-before-buying-that-drone.html

[19] http://www.ncsl.org/research/civil-and-criminal-justice/2014-state-unmanned-aircraft-systems-uas-legislation.aspx

[20] http://www.bostonglobe.com/opinion/editorials/2014/12/07/faa-flying-blind-drone-regulation/OO4HIaE4HQv037gJ2PbXyL/story.html

Blog: To Execute, or to Exonerate the Actually Innocent – Is That Really the Question?

By JOLT

On November 25, 2014

In Blog Posts

By: Brooke Kargman, Associate Staff

There have been vast advancements in forensic science largely due to developments in DNA technology. Many prisoners who have maintained their innocence have accessed DNA evidence ultimately substantiating their claims, which was previously unobtainable.[1] Inevitably, appeals courts are now confronted with “actual innocence” claims, including writs of certiorari and writs of habeas corpus, from prisoners who have maintained their innocence.[2] Through the use of DNA technology, more than 300 wrongfully convicted people in the United States have been exonerated.[3] Included in that sum are 18 people who have served time on death row.[4]

The discussion about the death penalty is an ongoing debate with many different angles. Discussing the death penalty as a suitable punishment for our future capital offenders is a proactive debate; circulating advocacy for or against punishing potential future capital offenders. Support for the death penalty has wavered, but is currently the lowest it has been since 1972, at 60%.[5] Discussions of the death penalty have now emerged into a retroactive aggressive debate. It has been argued that a person who is “actually innocent” does not necessarily have the constitutional right to be released from death row.[6]

The question becomes: does a convicted felon who has had a full and fair criminal trial have a constitutional right to be liberated of their death sentence when their “actual innocence” claim is supported by new evidence?

Many of our history’s esteemed policymakers have asserted that the Constitution is a “living document” so far as allowing lawmakers to create laws that adapt to society’s progressive ideals and advancements while reserving the rights written in the Constitution’s text.[7] Former Supreme Court Justice O’Connor has said, “execution of a legally and factually innocent person would be a constitutionally intolerable event.”[8]

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) implemented tighter restrictions on habeas cases and expanded the deference given to federal courts.[9] The Supreme Court has held that innocence is not enough and that a convicted felon does not have the constitutional right to postconviction DNA testing, even at their own expense, to prove their actual innocence.[10] In the widely talked about Troy Davis death penalty case, Justice Scalia dissents to Davis’ Petition for Writ of Habeas Corpus and writes, “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.”[11]

By not finding it constitutionally obligatory to exonerate “actually innocent” people from their death sentence, our policymakers are keeping our Constitution stagnant. The Eighth Amendment of our Constitution prohibits cruel and unusual punishment,[12] and executing an innocent person in the 2000s is seemingly anything but commonsensical or in accordance with the concept of our Constitution as a “living document.”

[1] Browse the Profiles, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Nov. 23, 2014).

[2] E.g., Petition for Writ of Certiorari, In re Davis, 557 U.S. ___ (2009) (No. 08-1443).

[3] Mission Statement, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Nov. 23, 2014).

[4] Id.

[5] See Jeffrey M. Jones, Americans’ Support for Death Penalty Stable, GALLUP (Oct. 23, 2014), http://www.gallup.com/poll/178790/americans-support-death-penalty-stable.aspx.

[6] See Dahlia Lithwick, Why It’s Constitutional to Execute an Innocent Man, NEWSWEEK, (Sept. 2, 2009, 8:00 PM), http://www.newsweek.com/why-its-constitutional-execute-innocent-man-79487.

[7] See generally Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution”, 76 N.Y.U.L. Rev. 1456, 1457 (2001) (“[C]onstitutional provisions are… interpreted to meet present social needs… Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the ‘earliest efforts’ to adopt a changing, evolving Constitution.”); Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (“[T]he words of the Amendment are not precise… their scope is not static… must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).

[8] David Grann, Trial By Fire, THE NEW YORKER (Sept. 7, 2009) http://www.newyorker.com/magazine/2009/09/07/trial-by-fire.

[9] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

[10] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 36-37 (2009) (No. 08-1443); DA’s Office v. Osborne, 557 U.S. 52 (2009).

[11] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 2 (2009) (No. 08-1443) (Scalia, J., dissenting) available at http://www.supremecourt.gov/opinions/08pdf/08-1443scalia.pdf.

[12] U.S. Const. amend. VIII.

Clapper v. Amnesty International and Data Privacy Litigation: Is a Change to the Law “Certainly Impending”?

By JOLT

On November 20, 2014

In Article