Aegis
Buying Data and the Fourth Amendment
Orin Kerr Wed, Nov 17, 2021, 3:04 PM
Can governments purchase user records as an end-run around the warrant requirement imposed by Carpenter v. United States?
Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
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Computer Fraud and Abuse Act (CFAA)
The Supreme Court Reins In the CFAA in Van Buren
Orin Kerr Wed, Jun 9, 2021, 9:04 PM
The Supreme Court handed down its first major decision construing the Computer Fraud and Abuse Act last week. The decision is a major victory for those of us who favor a narrow reading of the CFAA. It doesn't answer everything. But it answers a lot.
Fourth Amendment
Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?
Orin Kerr Wed, Sep 9, 2020, 7:01 AM
An overlooked part of United States v. Moalin could have a major impact on surveillance law.
Scholarship
Implementing Carpenter
Orin Kerr Mon, Dec 17, 2018, 11:36 AM
I recently posted a new draft article, “Implementing Carpenter,” on the Supreme Court's blockbuster June 2018 decision in Carpenter v. United States.
Encryption
The Fifth Amendment and Compelled Decryption
Orin Kerr Thu, Oct 11, 2018, 6:14 PM
A recurring question in law-of-digital-evidence investigations is how the Fifth Amendment applies to acts of compelled decryption. In these cases, the government gets an order directing a person to enter a password to unlock a device. The subject of the order then pleads the Fifth. How should a court rule? I wanted to flag two of my recent writings on this issue.
Fourth Amendment
Opening a File Whose Hash Matched Known Child Pornography Is Not a ‘Search,’ Fifth Circuit Rules
Orin Kerr Sat, Aug 18, 2018, 10:09 AM
The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a “search” for the government to then open the file to confirm it is child pornography?
Fourth Amendment
Public Utility's Recording of Home Energy Consumption Every 15 Minutes Is a 'Search,' Seventh Circuit Rules
Orin Kerr Fri, Aug 17, 2018, 12:29 PM
In a fascinating decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use.