This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the market faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market’s flaws. As this Note will show, these same causes of market failure are stirring in today’s economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries that require not just a more comprehensive remedy, but a wholesale change in the level of care for the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection, in part thanks to a kick-start by author Upton Sinclair, so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, the latter of which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today’s problems with lessons from the last century.
Note
A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry
United States v. Bond and United States v. Kyllo significantly departed from the Supreme Court’s prior Fourth Amendment jurisprudence. The definition of a Fourth Amendment search now captures a broader universe of law enforcement conduct. While this enlargement of the Fourth Amendment search inquiry has heretofore puzzled scholars, this Note argues that this enlargement may be consistent with the dynamic relationship that exists between rights and remedies. The erosion of Fourth Amendment remedial scheme “by making the exclusionary rule less available” has facilitated an expansion of the Fourth Amendment right.
This Note further argues that the dynamic between rights and remedies does not fully explain Bond and Kyllo. A second dynamic is in place that helps explain why the expansion of the Fourth Amendment right targeted the scope of conduct the Fourth Amendment is understood to regulate rather than the protections that attach when conduct is captured by the threshold inquiry. The Note argues that the rigor (or lack thereof) of these protections helps shape and define the threshold inquiry much the way constitutional remedies help shape and define constitutional rights. The corrosion of such protections in recent jurisprudence enabled the expansion of the threshold inquiry evidenced in Bond and Kyllo.
“True Threats” and the Issue of Intent
What mens rea, if any, is required for threatening speech to be constitutionally criminalized? Must the speaker have intended for his communication to be threatening? In Virginia v. Black (2003), the Supreme Court for the first time provided a definition of “true threats,” a categorical exception to the First Amendment. However, the Court failed to clearly answer the above questions. As a result, lower courts have interpretedBlack’s language to reach contradictory results regarding the issue of intent. Consequently, speech that is constitutionally protected in one jurisdiction may be criminalized in another. Such controversy and confusion is not new to the jurisprudence. Since the Court’s decision in Watts v. United States (1969), which created the “true threats” exception, lower courts have disagreed over the proper intent standard for threatening speech. Instead of clarifying the doctrine, the Court’s decision in Black has only served to further muddy the jurisprudence. When Black was decided, the overwhelming majority of courts had settled on an objective intent standard; however, the Court’s language in Black has cast some doubt on the propriety of that approach. This Note will examine the issue of intent and its disputed place in the true threats jurisprudence from the debate’s inception to the present day. Moreover, the impact of Black will be elucidated and explored. Finally, this Note suggests that when the Court addresses the issue of intent again, it should adopt a standard that requires the government to prove that the speaker intended for his communication to be threatening.