Government Data Mining and the Fourth Amendment
The author would like to thank participants in workshops at Stanford Law School and Florida Law School for their feedback on the content of this article, and Victoria Ianni for her research assistance. This paper is a version of a talk given at The University of Chicago Law School’s Surveillance Symposium, June 15–16, 2007.
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The government’s ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Since at least the mid1990s, the quantity of the world’s recorded data has doubled every year. At the same time, the computing power necessary to store, access, and analyze these data has increased geometrically, at increasingly cheaper cost. Governments that want to know about their subjects would be foolish not to take advantage of this situation, and federal and state bodies in this country have done so with alacrity.
I would like to thank Professor Jonathan Masur and the editors and staff of The University of Chicago Law Review, including Andy Wang, Zoë Ewing, Jonah Klausner, Karan Lala, Eric Haupt, Eugene DeCosse, and Helen Chamberlin, for their thoughtful advice and insights.
Holders of patents covering technology standards, known as standard-essential patents (SEP), control the rights to an invention with no commercially-viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations. Standards development organizations (SDOs) play an important role in curbing opportunistic behavior by patent holders. SDOs require SEP holders to license their patents on fair, reasonable, and non-discriminatory (FRAND) terms. However, courts have mischaracterized FRAND commitments, concluding that these disputes carry a Seventh Amendment guarantee to a jury trial. This mischaracterization undermines the fair resolution of FRAND disputes, and a different approach is necessary. In this Comment, Marta Krason proposes an alternative analytical framework that more accurately characterizes FRAND disputes by drawing on principles from contract and property law, concluding that the constitutionally proper adjudicator is a judge, not a jury.
I would like to thank Professor Sarah Konsky and the editors and staff of The University of Chicago Law Review for their invaluable input.
The internet plays a crucial role in modern life; however, equal access to it is not guaranteed. Drawing on existing tribal spectrum sovereignty arguments, Morgan Schaack writes that the control exercised by the FCC’s licensing of the electromagnetic spectrum and language common in many tribal treaties create a tribal access right to spectrum under the trust responsibility. Framing this access to spectrum as a trust-protected resource, the Comment situates allowing tiered internet service in the absence of net neutrality as a violation of the government's obligations under the trust responsibility.
Special thanks to Mario Barnes, Courtney Douglas, Paul Gowder, Deborah Turkheimer, to the audience at Northwestern Law’s Julian Rosenthal Lecture, and to Miranda Coombe, Sam Hallam, Caroline Kassir, and Danielle O’Connell for superb editing. Adeleine Lee and Alex Wilfert provided excellent research assistance. The authors contributed equally to this essay.
Antidemocratic forces rely on intimidation tactics to silence criticism and opposition. Today’s intimidation playbook follows a two-step pattern. We surface these tactics so their costs to public discourse and civic engagement can be fully understood. We show how the misappropriation of the concept of online abuse has parallels in other efforts at conceptual diversion that dampen democratic guarantees. Democracy’s survival requires creative solutions. Politicians and government workers must be able to operate free from intimidation. Journalists and researchers must be able to freely investigate governmental overreach and foreign malign influence campaigns that threaten the democratic process. Surfacing the two-step strategy is a critical start to combating it.