The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.
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Author Autonomy and Atomism in Copyright Law
Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law to insist on ownership of the rights to control their musical works, scholarly research, and even Facebook musings.
When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism”—the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.
This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism—and how not to.
Equitable Balancing in the Age of Statutes
Equitable Balancing in the Age of Statutes examines the application of the doctrine of equitable balancing in determining whether to issue injunctions for violations of federal statutes. For the past several decades, the Supreme Court has held that the decision whether to enjoin violations of federal laws ordinarily should be determined by “balancing the equities,” in which courts weigh the hardship that the plaintiffs would face if an injunction were denied against the hardship the defendants would face if an injunction were granted. The Court has justified the doctrine by declaring that it is a longstanding equitable practice dating back centuries, perhaps since time immemorial. The Court most recently applied the doctrine in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), in which environmentalists sought to enjoin the Navy from conducting antisubmarine training exercises using a type of sonar system alleged to be harmful to whales. The Court held that, even if the Navy was acting in violation of federal law, no injunction should be issued because, as the Court saw the balance of equities, national security trumps environmental protection.
The Article argues that the Supreme Court’s experiment in applying equitable balancing in statutory contexts should be abandoned because it conflicts with separation-of-powers principles. The Article seeks to debunk the Court’s premise for applying equitable balancing in statutory cases——that the doctrine has been part of equitable practice for many centuries. In fact, equitable balancing is a relatively modern phenomenon, which first appeared in state common law cases during the period of rapid industrialization following the Civil War, and it only gained general acceptance in the 1930s. It was adopted for the express purpose of expanding judicial discretion to protect industries against injunctions in nuisance actions to stop air and water pollution. History is repeating itself because the Supreme Court adopted equitable balancing in federal statutory cases, beginning in 1982, to expand judicial discretion to excuse violations of federal statutes when, in the courts’ judgment, countervailing policy interests outweigh the interests served by federal statutes. Once equitable balancing is recognized as a recent phenomenon adopted to enlarge judicial policymaking authority, it becomes apparent that applying the doctrine in federal statutory cases raises substantial unresolved separation-of-powers problems. Among other things, the doctrine allows, if not requires, that courts make ad hoc assessments of the relative importance of apparently conflicting statutory policies.