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Georgetown University Undergraduate Law Review

Volume I, Issue I

Spring 2014


All rights reserved. No part of this publication may be reproduced or transmitted in any form without the express written consent of the Georgetown University Undergraduate Law Review.


Georgetown University

Undergraduate Law Review Volume I, Issue I Spring 2014 Editorial Board and Staff Editor-in-Chief Adrienne Jackson Managing Editor Morgan Birck Assistant Editors Fahad Abdul William Baker Emma Rose Bienvenu Rebecca Kuang Sonia Okolie

Communications Director Emma Rose Bienvenu Layout Editor William Baker

Faculty Advisor Honorable Thomas L. Ambro Judge, Third Circuit, U.S. Court of Appeals


Undergraduate Law Review Dear Reader,

Letter from the Editor

It is with great pleasure that I welcome you to the inaugural issue of the Georgetown University Undergraduate Law Review. Despite the plethora of resources at our fingertips, we often become so centered on amassing knowledge that we fail to engage in debate and discourse on the knowledge that we have attained. Recognizing this, we decided to create a medium that not only discusses and informs readers of current legal debates affecting society, but one that also engages the reader in the debates surrounding these issues. The articles in this issue initiate conversations surrounding some of the most controversial topics in today’s society: free speech, privacy, and cyber warfare, to name a few. After reading the journal, we hope that you not only have gained new knowledge pertaining to the issues at hand, but also that you feel inclined to debate and discuss these topics. Although our original inspiration focused on fostering debate, it was no accident that we focused on the legal aspects of these issues, rather than, say, social or cultural perspectives. The law plays an imperative role in how we view the world; although many of our articles focus on larger issues at play in society, the effects of the law and legal debates are apparent everyday. The law is also an aspect of society from which no one is exempt; legal debates thus, are inclusive of all members of society. By focusing on the law, we have established not only a sound framework for debate but also a range of topics to which everyone can relate. This publication is the product of countless hours of hard work and could not have been possible without the support from our friends, family, the Government Department, the Georgetown Career Center and the Georgetown PreLaw Society. We would also like to thank our faculty advisor, Judge Ambro. Without his words of support and sound advice, the publication of this journal would not have been possible. We would also like to thank Dean Treanor for his kind words of support and encouragement, and for providing a link between our Undergraduate Law Review and Georgetown’s great law school. With all that said, I hope that you find these articles as intellectually stimulating to read as we did while reading, editing and publishing them. We would love to hear any comments and feedback on this publication—please do not hesitate to reach out to us at guundergraduatelawreview@gmail.com. Enjoy,

Adrienne Jackson Editor-in-Chief


Table of Contents

Introduction to the Journal Foreword Domestic Law More Than the Sum of its Parts: Organ Sales and the Right to Privacy Kee En Chong

1 2

3

The case against cash for kidneys.

Privacy in the Modern Age: Where Does the Supreme Court Stand? Madeline Moore Exploring Maryland v. King and United States v. Jones’ implications on privacy.

9

Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors Mary Toscano

20

Keeping Kirpans: A Question of Religious Freedom Grace Montgomery

29

The failure of mandatory arrest laws in responding to domestic violence.

Kirpans on government property in the context of the free-exercise clause.

International Law Cyber Warfare: The Destruction of Westphalian Paradigms Edward Percarpio Problems with current warfare policy in cyberspace.

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Introduction to the Journal Dean William M. Treanor Georgetown Law School Law and the Stories of the Day Law shapes our lives in ways large and small, and it lies at the heart of many, if not most, of the great policy debates of our day. Before writing this essay, I read today’s New York Times. The stories in one Sunday’s paper—a day in no way unusual—powerfully illustrate how prevalent, consequential, and diverse legal issues are. The front page reports that BP is attacking the legal settlement it entered into in the wake of the Gulf oil disaster. The lead story in the book review section focuses on a book on the Supreme Court’s marriage equality cases. The lead story in the magazine section concerns an historic lawsuit in which a chimpanzee is suing his captor. The sports section has a story on the effects of an NLRB decision that scholarship football players at Northwestern had a legal right to unionize. The cartoon in the Week in Review section challenges the FCC’s net neutrality decision. The lead story in the business section discusses the FDA’s proposed rules regulating e-cigarettes. And, as I write this, a t.v. news show plays in the background, and Georgetown Law Professor Sheryll Cashin is being interviewed about her new book on race relations and this week’s Supreme Court decision on affirmative action. Yet, despite law’s centrality, it is often at the periphery of liberal arts education. College students learn and discuss, in a focused way, economics, and history, and computer science, and philosophy, and government, and international relations, and business, and so many other disciplines. But in the United States and much of the world law is principally a graduate discipline. Yet Georgetown undergraduates take law-related courses. They write law-related term papers. In classes and in late night conversations, they debate legal issues. And history tells us that, whether they become lawyers or not, many will go on to play a large role in the way in which law evolves, and they will use law to advance Georgetown’s profound commitment to social justice. And now, with the inauguration of the Georgetown University Undergraduate Law Review, there is a new forum for serious essays by Georgetown undergraduates that will grapple with tough and important issues. It is an opportunity to bring discussion about law at Georgetown to a new level and to increase both awareness and the opportunity for reflection. It is an exciting development. I applaud those who made it happen, and, because I know Georgetown students, I know that the years ahead will see in this forum the appearance of important and innovative ideas as Georgetown students confront pressing problems and offer their thoughts on the best way forward. I am confident that, before long, the ideas that appear first in this and subsequent issues of this review will leave their mark on the news stories in the day’s newspaper. William Michael Treanor Dean and Professor of Law Georgetown University Law Center April 27, 2014

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Foreword

Honorable Thomas L. Ambro* Judge, Third Circuit, U.S. Court of Appeals

It is a privilege to write the Foreword to the inaugural issue of the Georgetown Undergraduate Law Review. I admire the creativity and efforts of the students who are making this happen.1 My regret is that no one during my time at Georgetown did the same thing. No doubt some may ask why have a publication by undergraduates relating to law, which is a post-graduate specialty. A flip answer is why not. That is hardly helpful. A better response relates back to A Man For All Seasons, an Academy Award-winning movie based on the memorable play of the same name by Robert Bolt. It is a story based on the true-life conflict of Sir (now Saint) Thomas More, England’s most famous lawyer, between his religious faith and the authority accorded to his once-great friend, King Henry VIII, who wished to divorce his first wife and, on meeting resistance from the Catholic Church, started his own. More’s balancing of conscience against the incursion of increasing restrictions on faith pits principle against the practical benefit of simply relenting. In this struggle, More seeks refuge in the protections then provided by law. When even those protections cease, faith prevails, and this results in More’s beheading. His last words purport to be “I die the King’s good servant, but God’s first.” One may lament that law yielded to force, and in the end did not save More. If so, why have law? A scene in the movie answers this question. In the scene, More is in a conversation with his daughter, Margaret, and son-inlaw, William Roper, about a distrusted person seeking a job that More could provide but refuses to do so. The scene begins as that person leaves the room. Margaret More: Father, that man’s bad. Sir Thomas More: There’s no law against that. William Roper: There is: God’s law. Sir Thomas More: Then God can arrest him. William Roper: So, now you give the Devil the benefit of law! Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? William Roper: Yes, I’d cut down every law in England to do that! Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!2

That is why we have law: for our safety’s sake. We want to be able to think, speak, write and act on all levels of our lives—intellectual, religious, social, economic and political—safe from unwarranted intrusions into our freedom. Law does not always prevail, but it provides at least the hope of shelter from the storm and often much more when it succeeds. Those who write about law, whether made by legislators or judges, do a service by reminding us how best to relate to rules that regulate our human interactions. The Georgetown Undergraduate Law Review performs this service, and no doubt will do so well. May it thrive and be with us a long time. Indeed, to borrow a phrase, may it be “Georgetown Forever.” * Thomas L. Ambro is a Judge on the United States Court of Appeals for the Third Circuit. Judge Ambro graduated from Georgetown’s College in 1971 (Class of ’72) and from Georgetown’s Law Center in 1975. He co-teaches—with Arthur J. Murphy, Jr.—a fall semester class on Georgetown’s Main Campus entitled Courtroom Communication. 1. On the Law Review’s Editorial Board are Adrienne Jackson, Morgan Birck, Emma Rose Bienvenu, Fahad Abdul, Sonia Okolie, Rebecca Kuang, and William Austin Baker. 2. A MAN FOR ALL SEASONS (HighlandFilms 1966).

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More than the Sum of its Parts: Organ Sales and the Right to Privacy Kee En Chong

School of Foreign Service, 2014

Abstract This article addresses contemporary issues with the constitutional right to privacy, specifically in its application to people’s sovereignty over their own bodies. The National Organ Transplant Act (NOTA), a controversial piece of Federal legislation that prohibits the sale of human organs, lies at the center of this argument. The law’s detractors claim that it perpetuates a chronic shortage of transplant organs and violates constitutionally protected privacy rights. Meanwhile, legislators insist that NOTA both upholds crucial principles of body sanctity and prevents the poor and the uninformed from making functionally coerced decisions. This article questions whether the protective influence of individuals’ fundamental privacy rights should extend to their “right” to sell their non-vital organs. The article seeks to address the delicate balancing of individual’s rights and freedoms against government’s need to uphold ethical and moral principles and to protect vulnerable parties. It does so specifically by drawing on arguments from both sides of the debate, and by analyzing the relationship between organ sales and analogous cases, such as the sale of plasma, sperm or risky labor. Ultimately, the author argues that NOTA does in fact pass constitutional muster: the right to privacy is not absolute and ought not be a guise under which social ideals or public interest are denigrated.

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More than the Sum of its Parts: Organ Sales and the Right to Privacy “The burden of proof,” contends John Stuart Mill, “is [on those] who are against liberty, who contend for any restriction or prohibition…[there is] a priori presumption in favour of freedom.”1 In regulating or restricting the activities of its citizens, this burden falls squarely upon the U.S. government. This piece will address whether the government can meet that burden of proof in the case of its National Organ Transplant Act (NOTA), a law that has been accused of allowing some 4,700 patients stricken with kidney failure to die every year. 2 NOTA has been further charged with violating a constitutional right to privacy, found within the “penumbra” of the Bill of Rights.3

From the perspective of organ sellers5, NOTA contests the boundaries of this sphere in two ways: 1) in the realm of economic transactions, and 2) over the use of medical procedures. Because privacy’s protective influence largely fails to extend over kidney sales, I argue that NOTA passes constitutional muster. And even in instances where privacy rights do exist, the interests of the federal government outweigh these rights. Hands off my kidney: The legal basis for sale and intervention

Advocates of kidneys sales frequently point out that the Fourth Amendment enshrines In the context of kidney sales, the right a principle of sovereignty over our bodies, 6 to privacy ought to be understood as protecting which overrides state claims. Our proximity to our bodies, and how they contribute to our our ability to make decisions over our bodsense of self, entitles us to complete ownership ies. This right is fundamental, because all our other rights stem from it. The ability to express of our bodies. I do not dispute either of these premises. Instead, I take issue with the claim our thoughts, enter into social and economic relationships, and shape our identities requires that the inviolability of our bodies should also power over our bodies. The fundamental nature be conferred upon body parts, given that these are parts of the whole. Alexander Berger, in of this right militates against its complete elimination. By implication, this right is also 5 I focus on organ sellers, because the inalienable—we cannot wholly surrender it to legitimacy of the privacy rights of organ recipisomeone else to exercise on our behalf. Prients (buyers) is largely contingent upon whether vacy is therefore the sphere of activities and allowing purchases would cause harm to others. In situations where we exercise this fundamental purchasing an organ, an organ recipient’s privacy rights run into the moral issues of causing bodily and inalienable right.4 1

John Stuart Mill, The Subjection of Women, 1, 3-4 (1869). 2 Discarded Kidneys, NEW YORK TIMES (Sept. 24, 2012), http://www.nytimes. com/2012/09/25/opinion/discarded-kidneys.html?_ r=0 3 Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (Douglas, J., concurring) 4 “Privacy as freedom [is] a sphere of spontaneous, authentic personal liberty that lay behind the constraints of social norms and obligations… [or in political terms,] a sphere of liberty from government regulation.” Robert Post, Three Concepts of Privacy, 89 Georgetown Law J. 2087,2096 (2001).

harm, exploiting the poor and legitimizing sales. But it only does so because sellers are willing to undergo transplants on their behalf. 6 U.S. Const. amend IV; for instance, Danforth argues that the “the constitutional right to privacy protects certain activities–‘zones of privacy’ from state interference. She cites “[s]pecific guarantees in the Bill of Rights” from Griswold v. Connecticut, supra, note 3, that “have penumbras, formed by emanations of those guarantees.” Later, she further cites Winston v. Lee 470 U.S. 753 (1985), “where the court held in a fourth amendment context” the right to privacy over “surgical intrusion.” Mary Taylor Danforth, Cells, Sales and Royalties: The Patient’s Right to a Portion of the Profits, 6 YALE L. & POL’Y REV. 179, 186-188 (1988).

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More than the Sum of its Parts: Organ Sales and the Right to Privacy

donating one of his kidneys, made the archetypal case in favor of donation by forwarding that “we already allow for paid plasma, sperm, and egg donation.”7 The crucial distinction is that the sanctity of one’s body is meaningfully different from the sanctity of a body part. Once separated from the body, removed body parts (and fluids) have a weaker claim to the same attendant rights granted under the sphere of privacy. Since the basis for granting the inviolability of rights over one’s body stems from its proximity and its contribution to identity-formation, we should hesitate to grant the same level of inviolability to body parts that no longer fulfill either function. Indeed, this distinction clearly manifests itself when we seek to extend the sphere of privacy into the market place. The very mechanism of a transaction—which implies that someone can do whatever they please with your blood after having bought it—suggests that one is capable of renouncing claims to body parts. Moreover, the inevitable consequence of transacting our body parts is that they cease being proximate to our bodies or essential to our sense of self. As such, the context of market transactions suggests it is possible for individuals to waive the inviolability of their body rights – conditions that permit State intervention. At first blush however, this need not portend a right to governmental interference. After all, recipients only have control over a seller’s organs because sellers explicitly renounce their initial claim in favor of buyers, rather than in favor of the government. Nevertheless, because the state guarantees the 7

Alexander Berger, Why Selling Kidneys Should be Legal, The NY Times Why Selling Kidneys Should Be Legal, NEW YORK TIMES (Dec. 5, 2011), http://www.nytimes.com/2011/12/06/opinion/why-selling-kidneys-should-be-legal.html

economic framework in which the transaction takes place—through law enforcement, currency, etc.—it implicitly participates in these transactions and has a legitimate basis for regulating them. Having established the State’s basis for intrusion, I now examine why NOTA’s ban is not an arbitrary intervention, but rather one based upon valid moral claims that outweigh citizens’ de facto privacy rights. On the face of it: Privacy of Medical Procedures v. Sanctity of Body and Life Supporters of kidney sales argue that the right to privacy confers a concomitant right to opt for medical procedures, free from governmental influence.8 From the perspective of organ sellers, this right was established in Griswold v. Connecticut and Roe v. Wade, where the “zones of privacy”9 permit both the use of contraceptives and abortion respectively. We ought to be able to opt for any medical procedure we like, the argument runs, because we are capable of making choices over our bodies. This argument is strengthened by the fact that any harm resulting from the medical procedure is borne solely by the organ seller. I argue, however, that a general right to medical treatment does not confer an unlimited right to all medical procedures: this right depends on the nature of the medical procedure. In this regard, kidney transplants can be meaningfully distinguished from the use of contra8

Johnson argues that “[NOTA]’s flat ban on the purchase or sale of human organs is unconstitutional; it sweeps too broadly because an individual’s decision to sell an organ involves a fundamental privacy right. The constitutional right to privacy has been held to encompass an individual’s decisions concerning contraception, abortion and education.” Karen L. Johnson, The Sale of Human Organs: Implicating A Privacy Right, 21. VAL. U.L. REV. 741, 744 (1986-1987). 9 Griswold v. Connecticut, supra note 3, at 484 (Douglas. J., concurring); Roe v. Wade 410 U.S. 113, 152 (1973) (Blackmun, J., concurring)

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More than the Sum of its Parts: Organ Sales and the Right to Privacy ceptives and abortions. They are not only more invasive, but also more life threatening. 10 The degree of harm imposed by kidney transplants therefore threatens the government’s interest in both the sanctity of one’s body and the sanctity of life. To be fair, we allow individuals to engage in dangerous or corporeally invasive activities all the time. A person is four times more likely to die by working in the fishing industry than by being a kidney donor.11 I concede that, on its own, the risks inherent to an activity cannot constitute grounds for violating privacy rights. Rather, the bright line distinguishing prohibited risky activities from ones we allow stems from the immediate aim of the medical procedure. Unlike other dangerous activities, the sole consequence of a kidney transplant operation on a kidney seller is to inflict physical harm for the purposes of removing a kidney.12 Unlike fishing or coalmining, 10

Abortion deaths- 0.567 per 100,000, David Grimes, Estimation of pregnancy-related mortality risk by pregnancy outcome, United States, 1991 to 1999, 194 Am. J. Obstet. Gynecol. 92, 93 (2006); for kidneys - 1 per 3,000 or 33.33 per 100, 000, Anders Hartman et al., The Risk of Living Kidney Donation, 18 Nephrol Dial Transplant 871, 871 (2003) 11 “Fatality rate of 121.1 per 100,000 workers.” America’s Most Dangerous Jobs, CNN (Sept. 20, 2012), http://money.cnn.com/gallery/ pf/2012/09/20/most-dangerous-jobs/ 12 Supra note 5. Much like my above caveat, I focus on the benefits accrued by the organ seller, because this move takes place in the context of legalization that would permit organ sales. Ultimately, any benefits to be accrued by the kidney recipient are contingent on the decision of the seller to part with his/her kidney. In general, we shy away from invasive self-harming operations unless they are meant to save the person’s life. Of course, one might point out that the corollary of the operation is to save the kidney patient, but as I will go on to show, the main intention of the seller is financial remuneration and not altruism.

where the harms suffered are a by-product of one’s labor, the invasiveness and bodily harms arising from kidney sales are fully intended, since extraction of the organ is the aim of the operation. It may then seem like an arbitrary distinction to allow the operation and its concomitant risks to be borne by altruistic kidney donors but not by compensated donors. Does this imply unfair discrimination? I answer with an emphatic no. I submit that any assessment of the nature of the operation must not only account for the risks and immediate aims of the physical act, but it must also consider the broader purpose for which one’s privacy rights are being exercised. The act of organ donation, because of its risks, upholds a principle of altruism that adds to the sanctity of body and life. We celebrate altruistic organ donation under the assumption that the donor selflessly assumes the harms and risks of a kidney transplant in order to save another person’s life, or to significantly improve their health and general welfare. Conversely, legalizing organ sales allows the exchange of money for submission to a permanently harmful medical procedure. Indeed, because many organ sales would not have occurred without remuneration, the financial objective becomes paramount for the organ seller. It therefore represents a diametrically opposed claim—that taking on those risks is only worthwhile if it implies financial gain. And so, because the harms to one’s body and to particular ideals are disproportionate when incurred in the pursuit of economic gain rather than altruism, the state has the right to limit privacy in sales, but not in donations. Let us return to our initial comparative examples to weigh their respective harms and risks. On the “risks” side of the scale, the legalized sale of plasma or semen does not involve the same level of intrusiveness and bodily

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More than the Sum of its Parts: Organ Sales and the Right to Privacy

harm as do kidney transplants. If we now move to the “purposes” side of the scale, while kidney donations involve similar risk levels than do kidney sales, their altruistic motivations outweigh their risks in a way that those of kidney sales do not. Similar tipping points were established in Roe v. Wade, where the Court prevented the use of abortions after fetal viability on the basis that, “the right to privacy…is not absolute…at some point, the state’s interest as to protection of health, medical standards and prenatal life, become dominant.”13 The Heart of The Matter: Privacy of Decision-Making v. Preservation of Autonomy I submit that the strongest reason for over-riding a seller’s autonomy over medical procedures is to protect that very autonomy. Unlike fishing, coal mining or professional football, kidney transplants inflict irreversible harm to one’s body. These harms are inflicted instantaneously, in contrast to the prolonged period of harmful activity that risky professions entail. This reduces organ sellers’ ability to limit or to reconsider these harms, meaningfully distinguishing them from the sale of organs. In addition, surveys demonstrate that the harms of kidney sales are ultimately disproportionate to their financial rewards. For instance, in Iran, the only country that currently allows kidney sales, a majority of sellers later regret their decision to sell their kidney.14 In a situation where individuals not only sacrifice their bodily integrity by submitting to harmful procedures but also later regret that sacrifice, state intervention is warranted because it protects the future autonomy of sellers. 13

Roe v. Wade (Blackmum, J., concurring) , supra note 8, at 114,155

14 Budiani-Saberi et al., Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities, 8 American Journal of Transplantation 925, 928(2008).

A compelling parallel can be drawn with drug use, which the State feels a moral imperative to regulate primarily because it strips individuals of their autonomy through addiction. The Court has found in previous decisions that the government has a legitimate interest in preserving that autonomy – neither a right to medical treatment, Gonzales v. Raich15, nor a right to religious practice, Employment Division v. Smith 16, constitute sufficient privacy buffer against the State’s interests. Privacy rights advocates strenuously challenge this claim. The basis of freedom of choice implies allowing individuals to make bad choices, even ones they will come to regret. These advocates insist that privacy serves as a shield to protect the right to make these choices. I contest this defense, particularly because sellers tend to be unable to make free and informed choices. Because a free-market system operates on the basis of price, organ sellers would likely be socio-economically less advantaged. While a wealthy individual’s economic calculus would value their kidney at a higher price than the market could offer, poor individuals would be more likely to go under the knife because of the higher relative value they place on financial reward. Monir Mon15 The Court found that the use of “homegrown marijuana” even for self-use and medical purposes could “frustrate the federal interest.” In this case, the federal interest lay in the upholding the Controlled Substances Act (CSA). The use of homegrown medical marijuana would reduce the government’s ability to regulate drugs as a whole. Accordingly, the Court ruled that such use was unconstitutional. Gonzales v. Raich, 545 U.S. 1, 16 (2005) (Stevens, J., majority opinion) 16 The Court found that the use of a hallucinogen, peyote, for the purposes of a Native American ceremony could be considered illegal. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct…cannot depend upon…a religious objector’s spiritual development.” Smith v. Employment Division, 494 U.S. 872, 885 (1990) (Scalia, J., opinion)

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More than the Sum of its Parts: Organ Sales and the Right to Privacy iruzzaman interviews thirty-three Bangladeshi kidney sellers, noting that the kidney trade takes “spare parts…almost exclusively from the poor.”17 But choices driven by poverty or desperation are not genuinely “free” choices. State intervention emerges as a necessary bulwark against abuse: by preventing the poor from being stripped of their right to make genuinely free choices regarding medical procedures, state intervention strengthens their privacy rights.18 As established in Washington v. Glucksberg, bans against medical procedures are reasonable actions by governments in preventing the probable exploitation of the poor. 19 17

Moniruzzaman, Monir. ‘Living Cadavers’ in Bangladesh: Bioviolence in the Human Organ Bazaar, 26 Medical Anthropology Quarterly 69, 72 (2012). See also the Iranian case of exploitation, Saeed Kamali Dehghan, Kidneys for sale: poor Iranians compete to sell organs, THE GUARDIAN (May 27, 2012), http://www.theguardian.com/world/2012/may/27/ iran-legal-trade-kidney. And also the case of the inter-country inequality: the U.S. exploiting poverty in third world countries like Nicaragua and Peru; and Israel from the former Soviet Republics, Michae Smtih et al. ,Organ Gangs Force Poor to Sell Kidneys for Desperate Israelis, BLOOMBERG (Nov. 1, 2011), http://www.bloomberg.com/news/2011-11-01/organ-gangs-force-poor-to-sell-kidneys-for-desperateisraelis.html

More than the sum of its parts “Yesterday’s slave,” cautions the 9th Circuit Court of Appeals, “may be today’s migrant worker...Today’s involuntary servitor is not always black; he or she may just as well be…a member of some other minority group. The methods of subjugating people’s wills have changed from blatant slavery to more subtle, if equally effective, forms of coercion.”20 While privacy rights are certainly fundamental, they ought not be a guise under which societal ideals are denigrated, and poverty exploited. Taken together, the State’s interests tip the scales in favor of justice and away from the monolith of privacy. Though J. S. Mill may have argued that “over [one’s] own body and mind, the individual is sovereign”21, the very sovereignty to which he refers faces firm limits against the competing need to protect the poor, bodily sanctity and the sanctity of life.

18

I acknowledge the fact that our society is rife with instances of economic exploitation of the poor, and the fact that the black-market also serves to exploit the poor. The premise behind this argument is that we are being morally inconsistent by not allowing kidney sales, even if leads to exploitation. I will briefly remark that even if such exploitation does exist, governments ought not sanction or participate in them. Legalization is an act of commission of exploitation; whereas, even if it takes place in the status quo, it is due to the omission of law-enforcement agencies’ effectiveness, or repealing morally questionable laws. 19 “The state has an interest in protecting vulnerable groups – including the poor… - from abuse. Washington, like most other states, reasonably ensures against this risk by banning, rather

than regulating, assisting suicide.” Washington v. Glucksberg, 521 U.S. 702, 731 (1997) 20 U.S. v. Mussry, 726 F.2d 1448, 1451 (1984) (Rehnquist, C.J., concurring) 21 John Stuart Mill, On Liberty 1,6 (1869).

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Privacy in the Modern Age:

Where Does the Supreme Court Stand? Madeline Moore

College of Arts & Sciences, 2016

Abstract

Two recent Supreme Court cases—Maryland v. King (2013) and United States v. Jones (2012)—provide insight into each Justices’ conception of privacy and its relationship with modern age technology. While Maryland v. King demonstrates Justice Kennedy and Scalia’s respective conceptions of physical privacy, the author notes key differences in their application. In essence, Kennedy considers the differing degrees of physical intrusions into privacy, while Scalia deems any intrusion as extreme. United States v. Jones reinforces this analysis, as Justice Scalia forcefully advances this attitude towards issues of privacy. Looking to the other members of the Supreme Court, United States v. Jones displays Justice Sotomayor’s and Alito’s more abstract interpretations of the Fourth Amendment. In examining the future test case of United States v. Muhtorov, the paper briefly notes that the Supreme Court will most likely rule evidence collected under the NSA program as impermissible, as its collection violates the Fourth Amendment in a five-four decision: Sotomayor, Alito, Kagan, Ginsberg, and Breyer against, versus Kennedy, Scalia, Thomas, and Roberts in favor.

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Privacy in the Modern Age: Where Does the Supreme Court Stand? Introduction On November 18, 2013, the Supreme Court refused to hear an appeal from The Electronic Privacy Information Center, an advocacy group, which argued that a Foreign Intelligence Surveillance Court inappropriately authorized NSA metadata collection. Turned over by companies like Verizon, Facebook, and Google, these electronic records held information on nearly every telephone call made to and from the United States over the past five years. While it did not include the locations or content of these calls, this metadata contained their times, numbers, and length.1 None of the Justices commented on their decision to decline, and it remains to be seen when they will reach an important decision in the national debate over privacy and security. To better understand the Justices’ current interpretations of privacy, this paper examines two recent Supreme Court rulings: Maryland v. King, 2013, and United States v. Jones, 2012.2 Both cases concern the relationship between privacy and technology in the modern age, and this paper analyzes their context, the Court’s majority ruling, and any concurring or dissenting opinions. With this insight into the Justices’ perspectives on privacy, their views on the Fourth Amendment will be briefly set against the most likely test case for the NSA’s warrantless surveillance program— United States v. Muhtorov—which recently began making its way through the US courts.3 1

Bill Mears, Supreme Court Allows NSA to Continue Looking at Telephone Records for Now, CNN (Nov. 18, 2013, 10:34 AM), http://www.cnn.com/2013/11/18/ politics/supreme-court-nsa-phone-records/ 2 Maryland v. King, 000 U.S. 12–207, 1, 1-18 (2012); United States v. Jones, 000 U.S. 10–1259 U.S. 1,1-14 (2011) 3 Charlie Savage, Warrantless Surveillance Challenged by Defendant, NEW YORK TIMES York Times. ( Jan. 29, 2014, 6:43 PM), http://www.nytimes. com/2014/01/30/us/warrantless-surveillance-challenged-by-defendant.html?_r=0.

Before looking at Maryland v. King, it is important to understand Katz v. United States, 1967. In this case, respondent Katz used a public payphone to conduct illegal gambling activity. Law enforcement collected the evidence from a recording device on the outside of the payphone which led to his conviction. Overturning this conviction, the Supreme Court expanded Fourth Amendment protections to include spaces in which individuals have a “reasonable expectation of privacy.”4 In King and Jones, Justices Kennedy, Scalia, Sotomayor, and Alito consistently reference Katz and its influence on subsequent case law.5 It forms the basis of their arguments, and they use it in different ways, revealing their attitudes and prioritizations regarding issues of privacy. With these in mind, this paper argues that if the current Supreme Court were to accept United States v. Muhtorov in the future, they would rule against its recent activity in a five-four decision: Sotomayor, Alito, Kagan, Breyer, and Ginsberg opposed, Kennedy, Scalia, Thomas, and Roberts in favor. Maryland v. King: The Case In the case Maryland v. King, the Supreme Court examined the use of DNA technology in law enforcement. Officers arrested respondent King on charges of assault and processed him in Maryland. There, officers used a cheek swab during the booking procedure to retrieve a DNA sample. Analysis matched this sample to an unsolved rape from 2003 by using the Combined DNA Index System (CODIS) which “connects DNA laboratories at the local, state, and national level.” 6 CODIS is “authorized by Congress and supervised by the Federal Bureau of Investigation,”7 and it 4 5

Katz v. United States, 389 U.S. 347 (1967) Maryland v. King, 000 U.S. 12–207, 1,1-28 (2012); United States v. Jones, 000 U.S. 10–1259 U.S. 1,1-14 (2011) 6 Maryland v. King, 000 U.S. 12–207, 1,2 (2012)

7

Id. at 2.

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Privacy in the Modern Age: Where Does the Supreme Court Stand? contains both an Unsolved Crimes Collection, in which King’s DNA match was discovered, and a Convict and Arrestee Collection. King was convicted for the rape, but the Maryland Court of Appeals overturned the conviction on the grounds that the cheek swab violated his Fourth Amendment rights. In its decision, the Supreme Court ruled that such DNA collection is constitutional, upholding King’s conviction.8 Maryland v. King: Majority Ruling Justice Kennedy authored the majority opinion of the Court in Maryland v. King, holding that DNA collection in this context was a reasonable search, acceptable under the Fourth Amendment. Kennedy makes three key arguments in support of this ruling: (1) The Government’s interest in King’s DNA was greater than King’s expectation of privacy, (2) the Government’s use of the DNA was explicitly for identification purposes, and (3) use of DNA technology is consistent with routine booking procedures.9 The specifics of these three points reveal important elements of Kennedy’s attitude toward privacy, which proves more utilitarian than those expressed in Justice Scalia’s dissention, authored on behalf of himself and Justices Ginsberg, Sotomayor, and Kagan. To assert his first point, Justice Kennedy establishes both the insignificance of DNA collection as an invasion of privacy and the gravity of the Government’s interest in such information. He acknowledges that “using a buccal swab on the inner tissues of a person’s cheek…to obtain DNA samples”10 is a search, and any invasion into the human body intrudes upon “cherished personal security,” and should be “subject to constitutional scrutiny.”11 Placing the swab under this scrutiny, he finds that 8 9 10 11

Id. at 28. Id. at 2. Id. at 7. Id. at 7.

it is “negligible,” a trait “of central relevance to determining reasonableness.”12 Kennedy provides invasive surgery or the inspection of an arrestee’s home as examples of searches that he considers greater intrusions, continuing that the swab “is a minimal one,” which does not “increase the indignity already attendant to normal incidents of arrest.”13 Indeed, he argues that a reasonable person in police custody should have “diminished” expectations of privacy, because they have been “arrested on probable cause for a dangerous offense that may require detention before trial.”14 Here, Kennedy draws a distinct line between the expectations of such a person and those of “otherwise law-abiding citizens,” for example, a motorist stopped at a checkpoint or a politician tested for drug use.15 Having proved the insignificance of a cheek swab, Kennedy presents the much graver government interests involved in DNA collection. DNA information is crucial to (1) identifying the detainee and his or her criminal history, (2) allowing law enforcement to make safety decisions about their detention, (3) allowing law enforcement to evaluate the likelihood of attempted escape, (4) determining bail (the threat that the detainee poses to the public), and (5) potentially proving a convicted person’s innocence.16 He stresses that it is a common occurrence that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”17 For Kennedy, “there can be little reason to question” these promotions of “legitimate governmental interests”18 which far outweigh the intrusion of a cheek swab “in the balance of reasonableness 12 13 14 15 16 17 18

Id. at 8. Id. at 26. Id. at 25. Id. at 25. Id. at 12-17. Id. at 12. Id. at 10.

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Privacy in the Modern Age: Where Does the Supreme Court Stand? required by the Fourth Amendment.”19 The Justice maintains that officers analyze DNA for “the sole purpose of generating a unique identifying number against which future samples may be matched.”20 However, he also emphasizes the importance of knowing “the type of person” detained, which allows law enforcement to “make critical choices.”21 In this way, Justice Kennedy gives “identity” a broad definition: An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. 22

fingerprint, and therefore has the same Fourth Amendment standing. Both occur only after “probable cause exists to remove an individual from the normal channels of society and hold him in legal custody,”25 neither is subject to officer bias, and DNA laboratories adhere to federal quality standards. The only differences between the two are “the unparalleled accuracy DNA provides,” and the more “rapid analysis” available from fingerprints.26 According to Kennedy, speed and accuracy are negligible factors in considering constitutionality, and running an arrestee’s DNA through the CODIS Unsolved Crimes Collection is consistent with running fingerprints through the FBI’s Integrated Automated Fingerprint Identification System (IAFIS). 27 In this respect, neither booking procedure is “different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect.”28

Kennedy’s three arguments for maintaining King’s conviction reveal two important aspects of his general interpretation of the This makes “identification” an umbrella term Fourth Amendment. First, he maintains a very for Kennedy, which is important to remember when considering his statement regarding DNA corporeal notion of privacy that focuses on the physical activities which constitute searches collection: “No purpose other than identificaand seizures. He does not discuss the metation is permissible.”23 physical invasion of privacy that occurs when the Government extracts an unwilling indi Finally, Justice Kennedy argues that vidual’s unique genetic information. Second, DNA collection is not significantly different Kennedy dismisses a “per se” rule of reasonthan other booking procedures. In the past, ableness: privacy violations are not intrinsithese have included photography, the Bertilcally unconstitutional and cannot be assigned lon system of body measurements, and finger a blanket Fourth Amendment standing.29 They printing technology. According to Kennedy, should always be considered in the context of these “derive from different origins and have the benefits provided, suggesting that as long different constitutional justifications than, say, 24 as the benefits to the government are greater the search of a place.” A unique DNA identhan the violation, any violation is permissitification number has the same function as a ble—no matter how extreme. Whether there is 19 Id. at 23. 20 Id. at 27. 25 Id. at 11. 21 Id. at 14. 26 Id. at 13. 22 Id. at 12. 27 Id. at 13-15. 23 Id. at 5. 28 Id. at 13. 24 Id. at 2. 29 Id. at 10. Georgetown University Undergraduate Law Review, Volume I, Issue I

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Privacy in the Modern Age: Where Does the Supreme Court Stand? a limit to this utilitarian attitude towards privacy remains to be seen, but Justice Kennedy has certainly not positioned himself as an advocate of privacy for privacy’s sake. Maryland v. King: Dissenting Opinion Justice Scalia authored a dissention in Maryland v. King on behalf of himself and Justices Ginsberg, Sotomayor, and Kagan. His counter-argument centers on three things: (1) A rejection of Kennedy’s reasonableness test, (2) a detailed correction of Kennedy’s assumptions about the way in which the current CODIS system operates, and (3) a strong warning against the potential of the Court’s ruling to legalize future suspicionless searches.30 These arguments reveal a stricter interpretation of the Fourth Amendment than Justice Kennedy’s, but a similarly corporeal attitude toward privacy, which will also be reflected in his majority opinion in United States v. Jones. Justice Scalia does not subscribe to Justice Kennedy’s utilitarian reasonableness test, which suggests that a search is justifiable if the interests of the government are greater than the minimal intrusion of privacy. Instead, he defends freedom from suspicionless searches because a person cannot be searched for evidence of a crime without any basis for believing that they are guilty or possess incriminating evidence. “That prohibition,” he states, “is categorical and without exception; it lies at the very heart of the Fourth Amendment.”31 While Justice Kennedy asserts that a person’s expectation of privacy is greatly reduced upon arrest, Justice Scalia emphasizes that only weapons, easily destroyable evidence, or evidence related to the crime of arrest can be “objects of a search incident to arrest.”32 DNA evidence does not fall into any of these categories, and Scalia argues that the primary purpose 30 31 32

Id. at 1(Scalia, J., dissenting). Id.at 1 (Scalia, J., dissenting). Id.at 4 (Scalia, J., dissenting).

of DNA collection is nothing other than “simply discovering evidence of criminal wrongdoing.”33 He criticizes Kennedy for indulging in a “free-form reasonableness inquiry,” which is only appropriate if “a governmental purpose aside from crime-solving is at stake.”34 While Kennedy focuses on the minimal invasion of a cheek swab, Scalia insists, “no matter the degree of invasiveness, suspicionless searches are never allowed if their principle end is ordinary crime solving.”35 For Scalia, the collection of King’s DNA was a suspicionless search for evidence of a crime other than the one for which he was arrested, making its conduct for ordinary law-enforcement purposes in violation of the Fourth Amendment. Scalia attempts to disprove Kennedy’s argument regarding the identifying purpose of the search by elaborating on the detailed operations of CODIS. According to Scalia, “the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection.”36 By running King’s DNA through the Unsolved Crimes Collection, law enforcement could not have been attempting identification. All the Unsolved Crimes Collection had to offer was a unique DNA number—not a name or other “identifying” information.37 As Scalia argues, “unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest,” DNA collection is a suspicionless search.38 Further, if “identifying” someone signifies finding out what unsolved crimes he has committed, then “identification is indistinguishable from the ordinary law enforcement 33 34 35 36 37 38

Id.at 4 (Scalia, J., dissenting). Id.at 3 (Scalia, J., dissenting). Id. at 5(Scalia, J., dissenting). Id. at 8 (Scalia, J., dissenting). Id. at 8 (Scalia, J., dissenting). Id. at 5 (Scalia, J., dissenting).

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Privacy in the Modern Age: Where Does the Supreme Court Stand? aims that have never been thought to justify a suspicionless search.”39 CODIS identified the sample from the previously unidentified rapist by its association with King; King was not identified by the DNA sample in CODIS. And since the actual DNA analysis results came back weeks after King’s arrest, Kennedy’s “legitimate governmental interests” in the DNA—numbers two through four—were not fulfilled.40 Scalia warns against future suspicionless searches by drawing attention to the very existence of CODIS. There is no need for “a separate, wholly redundant DNA confirmation of the same information” when fingerprint identification is so efficient.41 The real value of the DNA system in law enforcement is the ability to solve unsolved crimes, which is a purpose other than identification for which DNA collection in standard booking procedures would be considered a Fourth Amendment violation. Resolving old cases, says Scalia, is “a noble objective,” but it is not as important in America as “the protection of our people from suspicionless law-enforcement searches.”42 He predicts that as a consequence of the Court’s majority opinion, the DNA of everyone arrested—for whatever reason—will be legally entered into a national database: Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air- plane... applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic 39 40

Id. at 5 (Scalia, J., dissenting). Maryland v. King, 000 U.S. 12–207 1, 1-18 (2012). These were (2) allowing law enforcement to make safety decisions about their detention, (3) allowing law enforcement to evaluate the likelihood of attempted escape, and (4) determining bail. 41 Id. at 17 (2012) (Scalia, J., dissenting). 42 Id. at 17 (Scalia, J., dissenting).

panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.43 This hypothetical scenario reveals Justice Scalia’s fierce prioritization of the Fourth Amendment. He rejects the idea that one can incriminate himself through his own DNA as it is property irrelevant to a current arrest and redundant to fingerprint identification. He sees a slippery slope toward national information aggregation, stored and used toward future conviction. While he rejects almost every aspect of Kennedy’s argument, his imagery of the founding fathers opening their mouths for cheek swabbing reflects a similar preoccupation with privacy in physical terms.44 Unlike Kennedy, Scalia views any physical intrusion as grave; he asks: “why are the ‘privacy related concerns’ not also ‘weighty’ when an intrusion into the body is at stake?”45 Ultimately, Scalia’s black-and-white perception of privacy clashes with Kennedy’s sliding scale—where the degree of physical intrusion measures the degree of privacy intrusion. In spite of this, one must note that both interpretations initially begin with a corporeal view of privacy, a perspective that will be fully realized in United States v. Jones. United States v. Jones: The Case In the second privacy related case of United States v. Jones, the U.S. government investigated respondent Jones for suspected drug trafficking by obtaining a search warrant to install a GPS tracking device on Jones’ wife’s Jeep. While the search warrant was limited to ten days and within the District of Columbia, 43 Id. at 18 (Scalia, J., dissenting). 44 Maryland v. King, 12–207 U.S. 1, 18 (2012) (Scalia, J., dissenting); Maryland v. King, 12–207 U.S. 1, 26 (2012) (majority opinion) 45 Id. at 4 (Scalia, J., dissenting).

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Privacy in the Modern Age: Where Does the Supreme Court Stand? law enforcement placed the device on the eleventh day in Maryland. As a result, the placement of the device and its information collection over the following four-week period were warrantless. This information linked Jones to a conspirator’s stash house which contained enough cash and cocaine to convict Jones on multiple counts, including conspiracy to distribute and possession with intent to distribute illegal narcotics. While Jones filed a motion to suppress the GPS evidence, the District Court only granted it in part by suppressing the data collected while the Jeep was parked at Jones’ residence.46 The District Court admitted the remaining data on the grounds that “a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”47 The D.C. Circuit Court then reversed Jones’ conviction, and the Supreme Court upheld this ruling; both concluded that the GPS data collection violated the Fourth Amendment. United States v. Jones: Majority Opinion Justice Scalia authored the opinion of the Court in United States v. Jones on behalf of himself and Justices Kennedy, Thomas, and Roberts. Because of its simple physical element, he discusses the irrelevance of a “reasonable expectation of privacy” test in this case.48 While Katz established that “property rights are not the sole measure of Fourth Amendment violations,” Scalia emphasized that this idea did not replace the Amendment’s standard trespassory test.49 In this case, the Government physically intruded on Jones’ car, considered an “effect,” by placing a GPS tracking device on its undercarriage. This allows for a fairly simple assessment of constitutionality, because it makes a reasonableness test unnecessary— 46 United States v. Jones, 000 U.S. 10–1259 U.S. 1,1 (2011) 47 Id. at 2. 48 Id. at 5 (majority opinion). 49 Id. at 6 (majority opinion).

the Government engaged in an actual material intrusion. Repeatedly emphasizing Katz’ redundancy in this case, Scalia writes that it “added to, not substituted for, the common-law trespassory test”—it did not “narrow” or “erode” the Fourth Amendment’s scope.50 In contrast with Jones’ situation, Scalia provides another case of location monitoring: United States v. Karo.51 Because respondent Karo accepted a container with a secret “beeper” already intact, the Supreme Court found he was “not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.” 52 Scalia mentions that Jones, who possessed the Jeep before the Government inserted the device, “is on much different footing.”53 In doing so, Scalia successfully evades the question of whether the presence of tracking technology in a piece of property (like a phone) at the time one takes possession of it is an acceptance of the subsequent use of that technology by a third party. In addition, Scalia reaffirms his purely physical attitude toward privacy by offering a hypothetical “traditional surveillance” of Jones that “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” as “our cases suggest that such visual observation is constitutionally permissible.”54 However, as soon as the Government trespasses upon Jones’ car, it has violates the Fourth Amendment. Scalia cedes that “it may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.”55 However, he continues by arguing that “the present case does not require us to answer that 50 51 52

Id. at 8 (majority opinion). United States v. Karo, 468 U.S. 705 (1984). United States v. Jones, 000 U.S. 10–1259 U.S. 1,9 (2011) 53 Id. at 9 (majority opinion). 54 Id. at 11-12 (majority opinion). 55 Id. at 11 (majority opinion).

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Privacy in the Modern Age: Where Does the Supreme Court Stand? question,” evading any principle of privacy other than physical protection against intrusion. United States v. Jones: First Concurrence Justice Sotomayor concurs with Justice Scalia that for this case, a reaffirmation of the Fourth Amendment protection against trespassory searches suffices to overturn Jones’ conviction.56 She also warns that Justice Alito’s approach will discount the relevance of the physical intrusion on Jones’ Jeep, and focus only on the Katz “reasonable expectation of privacy” test, which “erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control.”57 Unlike Scalia, Sotomayor accepts the need to address the electronic use of the GPS beyond its physical placement on the Jeep. She recognizes that “physical intrusion is now unnecessary to many forms of surveillance,” and that in such cases, “the majority opinion’s trespassory test may provide little guidance.”58 In order to offer more substantial guidance for future cases involving electronic surveillance methods, Justice Sotomayor describes: (1) the dangers of those methods, (2) the ways in which they can change societal expectations, and (3) the ways in which those expectations could be used to shape Fourth Amendment jurisprudence.59 She points out the connection between a person’s public and private life. While a singular action taken in public becomes public information, the aggregation and analysis of all of these actions reveal private information not necessarily appropriate to the public sphere. Indeed, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, 56 57 58 59

Id. at 1-14 (Sotomayer, J., concurring). Id. at 2 (Sotomayer, J., concurring). Id. at 2 (Sotomayer, J., concurring). Id. at 1-6 (Sotomayer, J., concurring).

professional, religious, and sexual associations.” 60 Since the Government can cheaply store and mine the data indefinitely, this wealth of detail is subject to abuse. Because GPS monitoring “proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices,” which are “limited police resources and community hostility.”61 Such unrestricted power has enormous ramifications: Awareness that the Government may be watching chills associational and expressive freedoms... GPS monitoring— by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” 62 Regardless of these “chilling” affects, society would know and understand that it is being monitored and tracked. Sotomayor cedes that “perhaps... some people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminution of privacy’ as ‘inevitable.’”63 She is quite skeptical of this idea however. She offers that there does indeed exist “a reasonable societal expectation of privacy in the sum of one’s public movements.”64 While some people may have made this tradeoff, Sotomayor doubts the existence of a societal expectation that one’s actions “will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”65 She 60 61 62 63 64 65

Id. at 3 (Sotomayer, J., concurring). Id. at 3 (Sotomayer, J., concurring). Id. at 3 (Sotomayer, J., concurring). Id. at 5 (Sotomayer, J., concurring). Id. at 4 (Sotomayer, J., concurring). Id. at 4 (Sotomayer, J., concurring).

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Privacy in the Modern Age: Where Does the Supreme Court Stand? suggests that this be taken into consideration by the Katz test. Sotomayor references Katz to emphasize that “what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”66 She proposes that today, people relinquish personal information to third parties, but still seek to preserve it as private. The two are no longer mutually exclusive, given that in the “digital age,” it is necessary to release information in order to carry out “mundane tasks.”67 Thus, Sotomayor demonstrates that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”68 This is the difference between secrecy and privacy. While one’s name, age, address, etc. are not “secret” and will be voluntarily offered to some third parties, they are still “private” and should be protected.69 According to Sotomayor, this kind of information “can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”70 She continues: “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”71 These arguments mark Sotomayor’s departure from Justice Scalia’s and Kennedy’s preoccupation with physical privacy. Recognizing that nonphysical violations are equally grave, she offers a serious reconsideration of the current legal interpretation of privacy in the digital age. Unlike Scalia or Kennedy, if the Government had not physically trespassed on Jones’ Jeep, Sotomayor would still have over66 67 68 69 70 71

Id. Id. Id. Id. Id. Id.

at 6 (Sotomayer, J., concurring). at 5 (Sotomayer, J., concurring). at 5 (Sotomayer, J., concurring). at 6 (Sotomayer, J., concurring). at 6 (Sotomayer, J., concurring). at 6 (Sotomayer, J., concurring).

turned his conviction.72 She recognizes that “technological advances... affect the Katz test by shaping the evolution of societal privacy expectations.”73 She gives legal credence to the power of societal assumptions, which not only include the protection of privacy by and from the Government, but also an individual obligation to release information to third parties.74 Following Sotomayor’s reasoning, a “voluntary” release of information to third parties is really a socially obligatory one, and therefore should be protected under the Fourth Amendment. Just like Scalia, however, Sotomayor evades an actual resolution of such questions in this case, because “the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.” 75 United States v. Jones: Second Concurrence Like Sotomayor, Justice Alito stresses the importance of the nonphysical action involved in GPS surveillance, rather than the physical trespass. He offers his concurrence on behalf of himself and Justices Kagan, Ginsberg, and Breyer. He clearly separates the surveillance into two actions, writing: The Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).76 He dismisses the trespassory test as outdated by referencing recent case law, which understands the Fourth Amendment as pro72 73 74 75 76

Id. Id. Id. Id. Id.

at 1-14 (Sotomayer, J., concurring). at 3 (Sotomayer, J., concurring). at 5 (Sotomayer, J., concurring). at 6 (Sotomayer, J., concurring). at 7 (Alito, J., concurring).

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Privacy in the Modern Age: Where Does the Supreme Court Stand? hibiting “every unjustifiable intrusion by the government upon the privacy of the individual,”77 rather than hinging on “the presence or absence of a physical intrusion into any given enclosure.”78 He argues that today’s invasions, while not resembling “the direct and obvious methods of oppression” that were detested by the founders, are categorically the same.79 Further, he emphasizes the sublimation of property rights as the sole interest controlling against search and seizure. They are now “but one element in determining whether the expectations of privacy are legitimate.”80 Alito lists four other objections to the Court’s trespassory approach in Jones. First, like Sotomayor, he points out that should a trespass become unnecessary for conducting GPS surveillance, for example if the Jeep had a built-in GPS, then the Court’s ruling would not provide protection.81 Second, the Court’s ruling will result in incongruous results; if law enforcement tracks a car for a very short period of time using an attached GPS, the Fourth Amendment applies.82 If they track the same car for an extended period of time with no physical intrusion, the Fourth Amendment does not apply.83 Third, the ruling protects Jones as the owner of the car. Had he not been the technical owner, than the trespass upon the Jeep would not have been considered an intrusion into his privacy. Fourth, he describes how the trespassory rule provides only an outdated interpretation of the Fourth Amendment in cases involving unwanted electronic contact with computer systems, some courts having held that “even the transmission of electrons that occurs when a communication is sent from one 77 78 79 80 81 82 83

Id. Id. Id. Id. Id. Id. Id.

at 4 (Alito, J., concurring). at 5 (Alito, J., concurring). at 5 (Alito, J., concurring). at 5 (Alito, J., concurring). at 2-3 (Alito, J., concurring). at 5 (Alito, J., concurring). at 5 (Alito, J., concurring).

computer to another is enough.” 84 While Sotomayor offered guidance in terms of what could be considered modern societal expectations of privacy, Alito argues that today, there can be no standard expectations, because they are “in flux.”85 For this reason, he delegates some of the responsibility in privacy matters to the legislative branch, which he argues is better “situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”86 Thus, his defense of the Fourth Amendment is less physically oriented than Kennedy’s or Scalia’s, but also less vehement. His engagement with it is not as protective as the others, and he deems it a more appropriate subject for congress to tackle. Unlike the other Jones opinions, in which Katz is fundamental, Alito questions the validity of Katz. He argues that its key flaw is that it “rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations.”87 He seems to suggest that no such standard, reasonable person exists, at least at present, and so no standard ruling can exist either. Conclusion King shows us both Justice Kennedy’s and Scalia’s very physical view of privacy, and Jones especially reveals Scalia’s evasion of any other attitude. On the other hand, Jones displays Justice Sotomayor’s and Alito’s more abstract interpretations of the Fourth Amendment, which recognize modern, nonphysical privacy issues. Looking at the future test case of United States v. Muhtorov,88 issues of 84 85 86 87 88

Id. at 9 (Alito, J., concurring). Id. at 10 (Alito, J., concurring). Id. at 13 (Alito, J., concurring). Id. at 10 (Alito, J., concurring). United States v. Muhtorov, No. 12-cr00033-JLK 1 (D. Colo. Crim. R. 1.1. (A), filed Sept. 21, 2012)

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Privacy in the Modern Age: Where Does the Supreme Court Stand? standing will no longer present an issue as the Justice Department notified the respondent of evidence collected under the NSA program.89 Because the NSA did not physically intrude on the physical property of Muhtorov’s cell phone or Verizon’s physical property, but instead received metadata records from Verizon without trespass, it is reasonable to expect that Justices Kennedy and Scalia will find this evidence permissible under the constitution. In contrast, Justices Sotomayor and Alito will not allow the evidence to be admitted as its collection constituted a violation of the Fourth Amendment. They may justify this with an examination of a reasonable expectation of privacy, not of one’s individual public actions, but in the sum of those actions, aggregated and analyzed.

potential “panopticon” of DNA information.90 Perhaps he would also find such a panopticon of cell phone records troubling. Alito’s potential ruling against the United States depends on his concession that the Katz test can indeed be used to evaluate a common set of privacy expectation in today’s rapidly evolving society. These are all significant “ifs,” but if United States v. Muhtorov is heard by the Supreme Court, their views on privacy point to a defeat for the United States and the NSA’s warrantless wiretapping program.

Accordingly, the Justices in concurrence with Sotomayor and Alito on Jones will likely concur with them on the NSA ruling— Kagan, Ginsberg, and Breyer. Those in concurrence with both Scalia on Jones and Kennedy on King, Thomas and Roberts, will concur with them on the possible test case of United States v. Muhtorov. Therefore, if the current Supreme Court hears United States v. Muhtorov, it will most likely rule evidence collected under the NSA program as impermissible as its collection violated the Fourth Amendment in a five-four decision: Sotomayor, Alito, Kagan, Ginsberg, and Breyer versus Kennedy, Scalia, Thomas, and Roberts. This conclusion comes with some reservations, unique to each Justice. For Kennedy, it is possible that he would rule against the surveillance methods. His opinion on the King case was specific to a criminal issue, and metadata collected by the NSA pertains to any citizen, not only those violating the law. Therefore, he may be more sympathetic to their privacy. Similarly, Scalia could also be more sympathetic as he is concerned with the 89 SAVAGE, supra note 3.

90

Maryland v. King, 000 U.S 12–207 1, 18 (2012) (Scalia, J., dissenting)

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Mandatory Arrest Laws:

Revictimizing Domestic Violence Survivors Mary Toscano

College of Arts & Sciences, 2014

Abstract

Before the 1970s, police departments considered domestic violence a private matter and often refused to arrest abusers who posed a threat to survivors’ safety. An onslaught of lawsuits and activism propelled several states to adopt mandatory arrest laws that require police officers to arrest the perpetrator if there is probable cause that a crime of domestic violence occurred. Although aiming to protect survivors, mandatory arrest laws increases the number of survivors arrested during police encounters, further victimizing a vulnerable group. In exploring why mandatory arrest laws increase rates of survivor and dual arrest, this paper examines (1) how law enforcement’s incident-focused framework can fail to identify the primary aggressor, (2) how survivors often assault their abusers in self-defense, and (3) how trauma affects survivors’ interactions with law enforcement. The author concludes by briefly exploring recommendations for reform. *Trigger Warning: This paper discusses domestic violence and details of specific incidents, which include descriptions of physical assaults and threats to kill.

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors

Introduction For a year and a half, Rico Gray repeatedly strangled and threatened to kill his wife Marissa Alexander. He caused injuries that required hospitalization and assaulted Alexander upon finding out that she was pregnant with his child. Yet, on August 3, 2010, police officers arrested Marissa. Before law enforcement responded, Marissa had locked herself in the bathroom after Rico became violently angry. Rico proceeded to break into the bathroom, grab Alexander by her neck, and shoved her into the door. Barely managing to push past Rico, Marissa ran into the garage and attempted to leave the premises but could not open the garage door. Fearing for her life, Marissa fired a warning shot into the air. Police officers arrived at the scene and arrested Marissa. Less than two years later, a jury convicted Marissa of aggravated assault with a deadly weapon for which a judge sentenced her to twenty years imprisonment. Although Marissa successfully appealed her case, she spent significant time behind bars.1 Marissa’s story reveals how the criminal justice system can become a site of further victimization for domestic violence survivors. Marissa endured physical and emotional abuse for a year and a half, yet on August 3, 2010, police officers treated her like a criminal and made an arrest that led to a twenty-year prison sentence. Unfortunately, many survivors face a similar outcome when they turn to the criminal justice system for protection.2 For the past two and a half years, I have volunteered as a court and on-call advocate. I have helped domes1 Alexander v. State of Florida, NO. 1D122469 (Fla. Dist. Ct. App. 1 Sept. 26, 2013), http://caselaw.findlaw.com/fl-district-court-of-appeal/1645234.html 2 The term “survivor” will be used instead of “victim” because “survivor” frames the individual as an empowered agent instead of a passive victim.

tic violence survivors obtain civil protection orders, navigate the legal process, develop a safety plan, and access housing and other resources. Approximately one-fifth of my three hundred fifty clients were arrested after calling the police. Like Marissa, my clients had used violence against their abusers because they feared for their safety and believed they had no other option at the time. When police officers arrived at the scene, they arrested either both parties or only the party who acted in self-defense. The injustice of these outcomes warrants consideration of how and why police officers arrest survivors. Exploring the increase in survivor and dual arrest rates requires analyzing how policy shapes law enforcement’s decision-making at crime scenes. Mandatory arrest policy, which compels police officers to make an arrest if there is probable cause that a domestic violence crime occurred, significantly impacts law enforcement’s arrest decisions. Since the implementation of mandatory arrest laws in twenty-three states, the arrest of survivors has increased in the range of 4% and 12% to 15% and 30%.3 Studies show that arrest further traumatizes survivors and often results in loss of employment, custody of children, rights and resources given to survivors, and faith in the criminal justice system.4 In the following paper 3

Valla Rajah, Victoria Frye & Mary Haviland, Aren’t I a Survivor?: Notes on Identity Challenges Relating to Police Action in a Mandatory Arrest Jurisdiction, 12 Violence Women 898, 898 (2006). Because of limited funding and the complexity of domestic violence cases, researchers do not have an exact estimate of survivor and dual arrests rates. The large range highlights the need for further research. 4 David Hirschel & Eve Buzawa, Understanding the Context of Dual Arrest With Directions for Future Researc, 8 Violence Women 1449, 1459(2002 ); Shamita Das Dasgupta, A Framework for Understanding Women’s Use of Nonlethal Violence in Intimate Heterosexual Relationships, 8

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors I argue that the devastating effects of arrest highlight the need to reform arrest policy and create a survivor-centered response to domestic violence. To place mandatory arrest policy in context, I will discuss police departments’ response to domestic violence and the impetus for arrest reform. To help explain why police officers arrest survivors, I will detail the criminal justice system’s incident-focused framework, survivors’ use of violence, and law enforcement’s failure to understand trauma.5 Finally, I will briefly offer policy recommendations to ensure that survivors find safety, not victimization, in the criminal justice system. Police Response to Domestic Violence and Feminist Activism Prior to the 1970s, law enforcement considered domestic violence a private matter and rarely arrested abusers. Reluctant to become involved in incidents that happened “behind closed doors,”6 police officers reViolence Women 1364,1375-1376 (2002); RAJAH& FRYE & HAVILAND, supra note 3, at 898. 5 In my discussion, self-defense refers to survivors,’ supra note 2, use of violence or threats of violence against their abuser in order to protect themselves and/or their children from a present or future assault. This discussion is distinct from the legal concept of self-defense, which requires imminent danger and the use of necessary and proportional self-defensive force, Shana Wallace, Beyond Imminence: Evolving International Law and Battered Women’s Right To Self-Defense, 71 Univ. Chic. Law Rev. 1749 (2004). Legislators did not consider abusive relationships when developing self-defense law and instead designed the law for specific, potentially fatal encounters between mutual combatants or a stranger and victim. I will use a broader definition of self-defense in order to address survivors who use force to protect themselves yet whose actions do not meet the legal definition of self-defense. 6 David Hirschel et al., Domestic Violence

sponded to domestic violence calls by counseling both parties, threatening the abuser, negotiating with the abuser, and/or ordering the abuser to leave the residence for a few hours.7 In 1977, a national survey revealed that over 70 percent of police departments with over one hundred officers reported having a family crisis intervention training program in place.8 Although police officers’ “social work” did not deter abusers, police departments favored crisis intervention over arrest and often refused to arrest perpetrators, in spite of survivors’ wishes.9 In the 1970s, mandatory arrest emerged as the preferred response to domestic violence. The highly influential Minneapolis Domestic Violence Experiment concluded that arrest deterred abusers and subsequently recommended preferred arrest policy.10 Motivated by the experiment’s results, activists advocated for mandatory arrest because they perceived the failure to arrest as implicit support of domestic violence and a contributing factor to homicides.11 In landmark cases such as Thurman and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest Decisions, 98 J. Crim. Law Criminal. 255, 294 (2007). 7 Lawrence Sherman & Richard Berk, The Specific Deterrent Effects of Arrest for Domestic Assault, 49 Am. Social. Rev. 261, 262 (1984). 8 SHERMAN & BECK, supra note 9, at 262. 9 SHERMAN & BECK, supra note 9, at 262; Kathleen Ferraro, Policing Woman Battering, 36 Univ. Calif. Press Soc. Probl. 61, 61(1989). 10 SHERMAN & BECK, supra note 9, at 266. 11 The widespread implementation of mandatory arrest laws represents a victory for activists and reveals the changing norms around the government’s acceptance of domestic violence, RAJAH& FRYE & HAVILAND, supra note 3 at 897. By ordering law enforcement to arrest abusers, mandatory arrest policy frames domestic violence not as a private issue but as a crime that requires police action. This redefinition of domestic violence reflects the government’s desire to deter abusers and protect survivors, a notable success for activists,

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors

v. City of Torrington, survivors sued police departments for failure to provide equal protection to female survivors of domestic violence.12 These lawsuits, in conjunction with research and activism, propelled states to implement mandatory arrest laws. According to the National Institute of Justice, twenty-three states, including the District of Columbia, currently have mandatory arrest laws.13

arrest was made, while another study indicates that at least 20 percent of those arrested in domestic violence cases are survivors.16 The tension between police departments’ incident-focused framework and domestic violence, survivors’ use of violence, and the effects of trauma help explain the increase in survivor and dual arrest rates following the implementation of mandatory arrest laws.

Mandatory Arrest and the Arrest of Survivors. In most states, the rates of survivor and dual arrest14 increase after the implementation of mandatory arrest laws.15 One study reveals that law enforcement arrested survivors in 50 percent of domestic violence cases where an

Tension Between An Incident-focused Framework and Domestic Violence. Domestic violence is not an isolated incident but a pattern of emotional, physical, and/or sexual abuse, threats of abuse, and other behaviors used to demonstrate power and control.17 A survivor who endures frequent abuse may assault her/his abuser in self-defense; however, in the context of the relationship, she/he is the victim because she/he does not routinely assault her/his partner to exert power and instill fear. Thus, to understand an incident and identify the survivor and primary aggressor, one must understand the context in which the assault occurred, the history of abuse in the relationship, and the motivations of both parties.18 Such considerations rarely play a role in police officers’ response to domestic violence because of the criminal justice system’s incident-focused framework that relies on rigid definitions of crime.19 As a result, police officers focus on the specific incident and identify a victim and an offender without acknowledging the broader

RAJAH& FRYE & HAVILAND, supra note 3 at 897. Furthermore, mandatory arrest policy shifts the burden of arrest decision-making from survivors to law enforcement. Compelling survivors to request arrest increases the potential for retaliatory abuse and subsequently places survivors in a dangerous position, RAJAH& FRYE & HAVILAND, supra note 3, at 898. Since requiring survivors to make arrest decisions can jeopardize their safety, mandatory arrest policy benefits many survivors, FERRARO, supra note 12, at 62. Thus, mandatory arrest policy has undeniable merits, and activists had honorable intentions when advocating for its implementation. However, problems stem from the law’s application in situations where survivors act in self-defense and/or use violence against their abusers, which will be the focus of my discussion. 12 Thurman v. City of Torrington, 595 F.Supp. 1521 (D. Conn. L. Civ. R. 1984); HIRSCHEL ET AL., supra note 8, at 257-258. 13 David Hirschel, Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest Rates Table 1, NATIONAL INSTITUE OF JUSTICE (Jul., 25 2008,), http://www.nij.gov/publications/ dv-dual-arrest-222679/Documents/dv-dual-arrest. pdf?Redirected=true. 14 Dual arrest refers to the arrest of both parties. 15 Eve Buzawa & Carl Buzawa, Domestic Violence: The Criminal Justice Response 136(2003).

Buzawa & Buzawa , supra note 21, at 135; Martha McMahon & Ellen Pence, Making Social Change: Reflections on Individual and Institutional Advocacy With Women Arrested for Domestic Violence, 9 Violence Women 41, 47 (2003). 17 Sue Osthoff, But, Gertrude, I Beg to Differ, a Hit Is Not a Hit Is Not a Hit: When Battered Women Are Arrested for Assaulting Their Partner, 8 Violence Women 1521, 1526-1527 (2002). 18 OSTHOFF, supra note 24, at 1526-1527. 19 OSTHOFF, supra note 24, at at 1535.

16

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors context of ongoing abuse in the relationship.20 As of 2009, twenty-three states have enacted primary aggressor statutes that require police officers to consider the history of abuse, the severity of injuries, and the degree of fear inflicted.21 The successful implementation of these statutes, however, require both comprehensive training and law enforcement’s willingness to perform primary aggressor analysis when they respond to domestic calls.22 Many states do not require police officers to identify the primary aggressor and, in some cases, law enforcement arrest both parties so that the prosecutor and courts can determine the perpetrator and victim.23 When police officers are unable or unwilling to identify the primary aggressor, they often disregard both parties’ history and inadvertently arrest an innocent survivor.24 Self-Defense and Violence as a Survival Tactic25. When survivors use violence against their abusers, the likelihood of survivor arrest dramatically increases. The overwhelming majority of arrested survivors use physical force to prevent an imminent assault and/or protect themselves from greater harm. 26 Consider Meredith* whose husband Greg* verbally and physically abused her for over ten years.27 20

1458.

21

HIRSCHEL & BUZAWA, supra note 4, at

HIRSCHEL ET AL., supra note 8, at 270; Linda A. Szymanski, Which States Require an Arrest of a Primary Aggressor at a Domestic Violence Incident?, 14 Natl. Cent. Juv. Justice Snapshot (2009). 22 HIRSCHEL ET AL., supra note 8, at 259. 23 HIRSCHEL ET AL., supra note 8, at 296. 24 HIRSCHEL & BUZAWA, supra note 4, at 1458; MCMAHON & PENCE, supra note 23, at 52; OSTHOFF, supra note 24, at 1524. 25 Supra note 7 26 DASGUPTA, supra note 5, at 1378. 27 *All names have been changed, and all identifying details have been removed. I created

Meredith sustained injuries that required medical treatment on multiple occasions, and Greg threatened to kill her after she told him she wanted a divorce. During one incident, Greg told Meredith he would kill her and punched her in the face. As Greg attempted to punch Meredith a second time, Meredith hit Greg with a frying pan, knocking him unconscious, and called the police. When the police arrived, they arrested Meredith because she inflicted the more severe injury; however, Meredith had used violence to end the assault and to prevent Greg from inflicting even greater harm. Meredith acted in self-defense; however, since police officers responded to the incident without considering the parties’ history, they failed to arrest the primary aggressor. Police officers may also arrest a survivor acting in self-defense if they mistake defensive injuries for offensive injuries.28 Consider Jane* who endured emotional and physical abuse for approximately six months. As is common in domestic violence cases, the physical abuse escalated and, during one incident, Carl* began to strangle Jane. Fearing for her life, Jane bit and scratched Carl until he released his grip. Jane fled the premises and called the police. The scratches left a visible mark, while the bruises from strangulation did not appear on Jane until days after the incident. When the police arrived at the scene, they mistook the defensive bite marks and scratches for offensive injuries and subsequently arrested Jane, who struggled to articulate what had happened. Stories similar to Jane’s are not rare, especially in jurisdictions where police lack the training required to distinguish offensive and defensive injuries.29 the case examples of Meredith and Jane by drawing from my clients’ experiences. The cases do not represent a particular client. 28 HIRSCHEL & BUZAWA, supra note 4, at 1450. 29 HIRSCHEL & BUZAWA, supra note 4, at

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors

Meredith and Jane’s stories illustrate how survivors can use violence without being the primary aggressor. Based on the pattern of emotional and physical abuse, the severity of injuries they sustained from previous incidents, and their fear of their partners, law enforcement should have identified Meredith and Jane as survivors who used violence to protect themselves. Their stories reveal how the criminal justice system’s incident-focused framework and rigid definition of self-defense fails to account for the complexity of domestic violence cases and ultimately leads to survivors’ wrongful arrest.

the incident. The crippling effects of trauma allow abusers to give their description of the events and to frame themselves as the survivor. As a result, law enforcement often receives inaccurate accounts of incidents, misrecognizes the role that the survivor played in the incident, and subsequently arrests the survivor. 33

at 904.

at 906.

In addition to affecting survivors’ ability to articulate acts of violence, trauma causes some survivors to exhibit anger and fight back, though not in the moment of violence or in response to an imminent threat. As an abuser assaults or is about to assault a survivor, the survivor may not hit back because she/he The Effects of Trauma. When police officers realistically and understandably fears that any respond to a domestic violence call, they often sign of resistance will result in a more brutal encounter a survivor who endured physical, beating.34 Although, survivors may not fight sexual, and/or emotional abuse—sometimes back during the assault, they nonetheless feel moments before their arrival. The psychologanger, aggression, and/or embarrassment.35 As ical trauma of abuse often limits survivors’ a result, some survivors assault their abusers ability to clearly and coherently detail the not in self-defense but in reaction to the past facts of the incident. One study describes how trauma they endured and the subsequent anger survivors reported feeling paralyzed, disorithey feel.36 Though not the primary aggresentated, ashamed, frightened and confused sor in context of the relationship, traumatized when speaking with police after an incident.30 survivors who lash out against their abusers Survivors detailed violently shaking or crying may face arrest. Thus, by responding to the uncontrollably; as a result, they struggled to ar- isolated incident that prompted a call without ticulate what happened during the incident and considering the entirety of the relationship, the history of ongoing abuse.31 Some survivors law enforcement may fail to recognize the true reported that during their interview with police, primary aggressor and inadvertently arrest the they did not volunteer pertinent information survivor. and, because of trauma, provided an inaccurate Impact of Arrest on Survivors. Arrest devaccount of the incident.32 Regardless of the astatingly affects survivors’ ability to access rereasons why survivors struggle to communicate with law enforcement, police officers must sources and their willingness to call the police determine what happened. Unfortunately, when during future assaults. Once law enforcement police cannot work with the survivor, they turn arrest a survivor and labels her/him as a perpetrator, the survivor often loses the rights and to the abuser or a third party for an account of privileges given to domestic violence survi1450. RAJAH& FRYE & HAVILAND, supra note 3, 30 RAJAH& FRYE & HAVILAND, supra note 3, 33 31

RAJAH& FRYE & HAVILAND, supra note 3,

32

RAJAH& FRYE & HAVILAND, supra note 3,

at 904. at 904.

34 35 36 51.

MCMAHON & PENCE, supra note 23, at 51. DASGUPTA, supra note 5, at 1376. MCMAHON & PENCE, supra note 23, at

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors vors, including transportation to a safe location, shelter and temporary housing, participation in job training programs, the issuance of a protection order, and access to survivor programs.37 In addition to losing these privileges, arrest may jeopardize survivors’ employment and/or immigration status, result in financial hardship, and/or cause loss of child custody.38 Courts may compel survivors to attend batterer intervention programs and interact with abusers, which subjects survivors to further trauma.39 The effects of arrest compounded with the trauma of enduring domestic violence results in severe psychological, physical, and medical issues. 40 In addition to inflicting additional suffering on survivors, arrest frequently causes survivors to lose faith in the criminal justice system and become reluctant to call the police. Arrest increases previously existing feelings of powerlessness and self-blame, which directly impacts survivors’ safety and ability to leave the relationship.41 Unsurprisingly, these encounters shatter victims’ perception of law enforcement—a tragic outcome, considering the strength it takes to call the police during an incident. For many survivors, especially survivors of color, involving the police requires tremendous courage because they fear retaliation from the abuser or live in a community that distrusts the police.42 After being arrested, many survivors report that they will not call the police if violence escalates and will instead 37 HIRSCHEL & BUZAWA, supra note 4, at

1459; RAJAH& FRYE & HAVILAND, supra note 3, at 898. 38 DASGUPTA, supra note 5, at 1375-1376; RAJAH & FRYE & HAVILAND, supra note 3, at 898 39 OSTHOFF, supra note 24, at 1526 40 RAJAH& FRYE & HAVILAND, supra note 3, at 898 41 RAJAH& FRYE & HAVILAND, supra note 3, at 912 42 RAJAH& FRYE & HAVILAND, supra note 3, at 902

protect themselves; this sometimes means they will become more vulnerable to their partners’ violence.43 The potential loss of child custody, immigration status, employment, rights afforded to survivors, and faith in the criminal justice system reveals arrest’s devastating impact on survivors. Such effects should prompt the reexamination and reform of mandatory arrest laws in order to reduce untenably high rates of survivor and dual arrest. Conclusion The stories of Marissa Alexander, Meredith, Jane, and thousands of other arrested survivors reveal the need to adopt a survivor-centered arrest policy. Although policy cannot eradicate domestic violence, reforming arrest practices will reduce the harm done to survivors by lowering dual and survivor arrest rates and improving survivors’ interactions with law enforcement. Drawing on research and my experience as a direct services provider, I recommend (1) the nationwide implementation of primary aggressor statures, (2) mandatory training of law enforcement, and (3) a national, funded mandate for local on-call advocacy programs. By no means a conclusive list, my recommendations warrant further critical discussion but raise considerations that should be part of the reform discourse.44 Primary aggressor statutes require that, when making an arrest, police officers consider the following six elements: “(1) The history of domestic abuse between the parties; (2) 43

DASGUPTA, supra note 5, at 1376-1377; HIRSCHEL & BUZAWA, supra note 4, at 1459.

44 Other considerations for reform and further

research include, (1) whether states should adopt mandatory or preferred laws, (2) whether self-defense laws should be expanded to include cases where survivors use violence to protect themselves, though not in response to an imminent threat, (3) whether states should adopt no-drop prosecution and/or mandatory reporting for medical professionals, (4) whether arrest laws should adopted by military and campus police.

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors

The relative severity of the injuries inflicted on each person; (3) Evidence from the persons involved in the domestic abuse; (4) The likelihood of future injury to each person; (5) Whether one of the persons acted in self-defense; and (6) Evidence from witnesses of the domestic abuse.”45 Since identifying the primary aggressor can be difficult, especially in cases where both parties use violence, states should mandate comprehensive police training in conjunction with primary aggressor statutes to ensure that law enforcement can perform primary aggressor analysis properly and determine if a party acted in self-defense. Ideally, trainings would teach methods from states that use evidence-based practices and have low survivor and dual arrest rates. In addition to primary aggressor statutes and mandatory police training, a nationally funded mandate for local on-call advocacy programs would help law enforcement determine the primary aggressor and reframe domestic violence as a legal, social, and economic issue. Because most survivors need access to housing, legal services, employment, and other resources, creating a survivor-centered response requires coordination amongst law enforcement, courts, domestic violence organizations, and social services agencies. By allowing trained domestic violence advocates to ride along with police officers, provide crisis intervention services at crime scenes, and assist in primary aggressor analysis, nationally funded, locally developed on-call advocacy programs would facilitate survivors’ access to resources.46 On-call advocacy programs would 45 Tenn. Code Ann. § 36-3-619 (2011) 46 Although the structure of local on-call advo-

cacy programs would vary from region to region, the programs would build on the services provided by the National Domestic Violence Hotline and local hotlines by allowing trained advocates to ride along with police officers and provide crisis intervention services at the scene of the crime. Crisis intervention services include comprehensive safety planning, connecting survivors

not only increase police accountability but also ensure a coordinated community response that meets survivors’ needs. A partnership between law enforcement, advocates, and survivors would reframe domestic violence as a community issue that requires a comprehensive, multi-faceted solution. Although the implementation of primary aggressor statutes, mandatory police training, and on-call advocacy programs will not eliminate domestic violence, reforming arrest policy to include these recommendations will help ensure that the criminal justice system prioritizes survivors’ safety and well-being. Creating a survivor centered response requires acknowledging the complexity of domestic violence, valuing survivors’ perspective, and reframing domestic violence as a legal, economic, and cultural issue that devastatingly affects our community. A comprehensive solution to domestic violence, the reform of arrest policy to include primary aggressor statures to emergency housing, childcare, and other services, explaining the protection order process, and helping survivors determine how to meet all of their needs. Local on-call advocacy programs can fit within and enhance the efforts of the National Domestic Violence Hotline. Established as part of the Violence Against Women Act, the national hotline accepts calls from across the nation, and trained advocates connect survivors to local resources; Violence Against Women Act, P.L. 113–4, 2013. For instance, if a survivor from Florida called the national hotline, the advocate would transfer her call to a domestic violence agency in her area. To ensure that on-call advocacy programs address the unique needs of their communities, I recommend that domestic violence agencies that house local hotlines implement on-call advocacy programs as a way to enhance their already existing services. Volunteer advocates that answer the hotline could undergo additional training to ride along with police officers and provide the same crisis intervention services they use over the phone in person. A national mandate and an increase in funding for agencies that already operate hotlines and receive grants from the Violence Against Women Act would help ensure that all communities have both a hotline and an in person oncall advocacy program.

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Mandatory Arrest Laws: Revictimizing Domestic Violence Survivors and mandatory police training, will improve survivors’ interaction with law enforcement and help ensure that survivors such as Marissa, Meredith, and Jane find safety, not victimization, in the criminal justice system.

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Keeping Kirpans:

A Question of Religious Freedom Grace Montgomery

School of Nursing & Health Studies, 2016

Abstract

A kirpan—an object resembling a sword or a dagger—is one of the required objects of faith in Sikhism, a religion founded in India in the fifteenth century. Despite its weapon-like appearance, the kirpan holds deep religious significance for those who must wear it regularly. As a compulsory tenet, this object has become the source of much tension in the United States, where it is against the law to possess a weapon on government property. This article examines whether a ban on carrying a kirpan violates the Free Exercise Clause. Based on legal precedent, the author argues that the ban on kirpans is in fact not discriminatory, and in no way attempts to restrict religious practice; rather, the ban comes from the government’s compelling interest in public safety.

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Keeping Kirpans: A Question of Religious Freedom For centuries, the interpretation of the Free Exercise Clause and subsequent legislation have given rise to charged religious and political controversies in the United States; whether Sikhs should be allowed to carry kirpans on government property has not avoided this controversy. This was exemplified in January of 1993, when ten-year-old Sikh Ranjinder Cheema was playing basketball at school. His classmates noticed the kirpan he was carrying under his clothes.1 All baptized Sikhs are required by a core tenet of their religion to carry this small, ceremonial dagger at all times; it serves as a reminder of their commitment to the tenets of the Sikh faith, which include justice, charity, morality, humility, and equality.2 When school officials were notified of Rajinder’s kirpan, the young boy was suspended. The events brought Ranjinder before a Federal Court and sparked a nationwide controversy over the correct interpretation of the Constitution’s Free Exercise Clause.3 This debate raises complicated questions about religious identity, public safety, tolerance of diversity, and the limits of the First Amendment’s Free Exercise Clause. In New Spiritual Homes: Religion and Asian Americans, Vinay Lal, author and UCLA Professor contends that the “presence of kirpan-carrying Sikh children in California’s schools has clearly raised other anxieties about identity and cultural politics.”4 Lal’s sugges1 Cheema v. Thompson, 67 F.3d 883,

889 (9th Cir. 1995); Deb Dipanwita, Of Kirpans, Schools and the Free Exercise Clause: Cheema v. Thompson Cuts through RFRA’s Inadequacies, 23 Hastings Const. Law Q. 877, 877 (1996) 2 Understanding the Kirpan, World Sikh Organization of Canada (last visited March 10, 9:50 PM), http://worldsikh.ca/page/understanding-kirpan 3 Cheema v. Thompson, supra note 1, at 883; Dipanwita, supra note 1, at 878. 4 Lal, Vinay, Sikh Kirpans in California Schools: The Social Construction of Symbols, the Cultural Politics of Identity, and the Limits of Multiculturalism, in New Spiritual Homes: Reli-

tion implies that this debate is deeply sensitive and complex; it is precisely because of this complexity, and the inherent complexity of most free exercise cases, that it is particularly important that this deliberation is made with acute consideration of the law and legal precedent. The decision to allow kirpans on government property must be based on provisions of the First Amendment and examined through the lens of relevant historical cases. Further, when the issue is examined from this perspective, it becomes clear that carrying kirpans on government property should not be permitted. Despite the Court’s ruling in Cheema v. Thompson on the issue of kirpans,5 this paper contends that kirpans on government property where weapons would otherwise not be permitted does not violate Sikhs’ right to the free exercise of their religion and thus the ban is constitutional. First, it is necessary to address one of the most glaring counterarguments to this thesis. Throughout history, exemptions have been given to certain groups and individuals based on their religious beliefs. In 1971, the Court ruled in the case of Wisconsin v. Yoder that the State’s interests in requiring school attendance beyond the eighth grade were outweighed by the individual’s interest in the Free Exercise Clause. This conclusion was based on the finding that the values taught in secondary school were in “sharp conflict with the fundamental mode of life mandated by the Amish religion.”6 Subsequently, it is tempting to argue that the ban of kirpans may also be in sharp conflict gion and Asian Americans

1999).

5

883.

57,119 (Yoo, David ed.,

Cheema v. Thompson, supra note 1, at

6

WISCONSIN v. YODER, The Oyez Project at IIT Chicago-Kent College of Law,http://www. oyez.org/cases/1970-1979/1971/1971_70_110 (last visited March 9, 2014).

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Keeping Kirpans: A Question of Religious Freedom with the fundamental mode of life mandated by the Sikh religion. While the cases may share some surface similarities, they differ with regard to several key points. In Wisconsin v. Yoder, the Court’s ruling that Amish children did not have to attend school until the age of 16 had little, if any, effect on the rights of others involved in the public school system. In other words, ruling in favor of Yoder only served to expand the rights of the Amish at little cost to the rights of the other groups directly involved.7 The same cannot be said for the case of the kirpan. It ought to be noted that regardless of the decision made concerning kirpan use on government property, the rights of one group will be limited; if the state were to permit the carrying of kirpans on government property it would inherently infringe upon the preexisting rights that public school students and government workers have to a weapon-free environment. Further, in the 1971 case of Lemon v. Kurtzman, the Court unanimously found that in order for a statute to be constitutional it needs to have a “secular legislative purpose,” with principal effects that neither advance nor inhibit religion, and it must not promote “an excessive government entanglement with religion.”8 With this precedent it can be stated in no uncertain terms that if the State were to create an exemption for Sikhs who wish to carry kirpans, it would intrinsically necessitate government entanglement in religion. Moreover, a statute designed to exempt individuals based on their adherence to the Sikh religion does not have a “secular legislative purpose”9 and it is hard to contend that this statute would not work to support the principles of a specific 7 8

Id. LEMON v. KURTZMAN, The Oyez Project at IIT Chicago-Kent College of Law,http://www. oyez.org/cases/1970-1979/1970/1970_89 (last visited March 9, 2014).

9 Id.

religion. While this provides strong logical support for the kirpan ban, legal considerations further strengthen this argument. The intentions and limitations of the First Amendment’s Free Exercise Clause are some of the most important considerations to take into account when debating the use of a kirpan on government property. The Free Exercise Clause states that, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”10 The use of broad language in this clause has several interpretations. Thus, in order to understand how this clause applies to the kirpan debate, one must examine legal precedent as established by Supreme Court cases. In the 1987 case Lyng v. Northwest Indian CPA, the Forest Service proposed the building of a road through an area called Chimney Rock where Native Americans historically performed religious rituals. The Court ruled in favor of Lyng and the Forest Service stating that although the actions of the Forest Service would place a significant burden on the religious practices of the Northwest Indians, this burden was only incidental and therefore did not constitute a state effort to coerce the Native Americans to “act in violation of their beliefs.”11 The Court continued to say that the government could not function “if it were required to satisfy every citizen’s needs and desires” and that no group could veto public programs that “did not actually prohibit the free exercise of religion.”12

The Employment Division v. Smith case of 1989 further solidified the precedent established by Lyng v. Northwest Indian CPA. In Employment Division v. Smith, the Court ruled 10 U.S. CONST. amend. I. 11 LYNG v. NORTHWEST INDIAN

CPA, The Oyez Project at IIT Chicago-Kent College of Law,http://www.oyez.org/cases/1980-1989/1987/1987_86_1013 (last visited March 9, 2014). 12 Id.

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Keeping Kirpans: A Question of Religious Freedom that it was constitutional for the State to withhold unemployment benefits to a worker fired for use of illegal drugs for religious purposes. The Court held that religious belief has never been a basis for the exemption of an individual from an otherwise valid, government-regulated law.13

The rulings of the two aforementioned cases should unquestionably be taken into account when making a decision about the prohibition of kirpans; these rulings are arguably most relevant and analogous to the case at hand. At the crux of the argument in favor of kirpans on government property is the belief that the ban would be a violation of the First Amendment’s Free Exercise Clause. The rulings held by the Court in both Employment Division v. Smith and Lyng v. Northwest Indian CPA set an applicable precedent. Banning kirpans on government property on the basis that they qualify as a weapon, otherwise illegal on state property, is in fact entirely in accordance with the Free Exercise Clause. Put simply, as was true in the Smith case and the Lyng case, the possession of kirpans on government property violates an already established law that the government is legally entitled to regulate. Further, any widely applicable law or government-regulated program that prohibits the presence of weapons on government property is not targeted discrimination against the free religious exercise of Sikhs. Therefore, any adverse effects these laws may have are merely incidental. The previous cases—Lyng and Employment Division—establish that the First Amendment is not concerned with incidental burdens on the free exercise of religion.

13

EMPLOYMENT DIVISION v. SMITH, The Oyez Project at IIT Chicago-Kent College of Law,http://www.oyez.org/cases/1980-1989/1989/1989_88_1213 (last visited March 9, 2014).

It is worth noting the 1992 case of the Church of Lukumi Babalu Aye v. Hialeah, in which the Court ruled against the ordinances that Hialeah put in place which prohibited ritual animal sacrifice. In this instance, the “core failure of the ordinances was that they applied exclusively to the church.”14 This case is important to consider because it serves as a valuable reference. In the case of Sikhs, if the State drafted a provision that did not call for the prohibition of all weapons on government property but rather one that exclusively prohibited kirpans, then the basis for the ban would be unconstitutional. The ban on kirpans is based solely on the existing government regulation of the presence and absence of weapons on government property; the kirpan, despite being a religious article falls into the category of a weapon. While this is among the strongest supporting evidence, it is vital that we also view the debate through the lens of the Religious Freedom Restoration Act of 1993. The implications of the establishment of the Religious Freedom Restoration Act of 1993 (RFRA) must be considered given their relevance to the debate on kirpans.15 Under the RFRA, the State is prohibited from enacting policies that “substantially burden” the free exercise of a person’s religion unless it can prove that these policies are in furtherance of compelling state interest. Even then only the least restrictive burden can be imposed.16 Here, it is helpful to look at the 2005 case of Gonzales v. 14

CHURCH OF THE LUKUMI BABALU AYE v. HIALEAH, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/ cases/1990-1999/1992/1992_91_948/ (last visited March 8, 2014). 15 Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb-2000bb-4 16 CITY OF BOERNE v. FLORES, The Oyez Project at IIT Chicago-Kent College of Law,http://www.oyez.org/cases/1990-1999/1996/1996_95_2074 (last visited March 9, 2014).

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Keeping Kirpans: A Question of Religious Freedom O Centro Espirita Beneficiente Uniao Do Vegetal (UDV) as an instance where the RFRA was upheld and as a point of comparison regarding the case of the kirpan. In the Gonzales v. UDV case, the Court held that the government was not permitted to regulate the UDV’s religious drug use because it had failed to prove a compelling interest. The Court cited that the general government interests provided were not sufficient to satisfy the compelling interest standard.17 The kirpan debate differs in that compelling government interest can be readily demonstrated through the evaluation and utilization of deeply entrenched historic precedent. First, the education of children can be proved as a compelling state interest through the case of Cheema v. Thompson which maintained that the State has a “high responsibility for the education of its citizens, has the power to impose reasonable regulations for the control and duration of basic education.”18 Further, Cheema v. Thompson also called upon the precedent established by Sherbert v. Verner to prove that the protection of public safety was indeed a compelling interest.19 Thus, we can conclude that despite the consideration of the RFRA, the ban on kirpans is still held to be constitutional and the provision of proof of compelling state interest makes the argument all the more conclusive.

ly why the ultimate decision needs to be based on statute and legal precedent. By observing this case through the lens of historical cases and Supreme Court decisions, it becomes clear that allowing kirpans on government property would prove unconstitutional.

The debate over the prohibition of kirpans is one that cannot be separated from issues of diversity, multiculturalism, and religious tolerance. This argument is deeply entangled with cultural understanding and is precise17 GONZALES v. O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2000-2009/2005/2005_04_1084 (last visited March 9, 2014). 18 Cheema v. Thompson, 67 F.3d 883, 889 (9th Cir. 1995) 19 Dipanwita, supra note 1, at 919; Sherbert v. Verner, 374 U.S. 398 (1963)

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Cyber Warfare:

The Destruction of Westphalian Paradigms Edward Percarpio

School of Foreign Service, 2016

Abstract

This paper examines the effects of cyberspace on international law, in particular its relevance to and impact on how we perceive warfare. The inherent differences of cyberspace from any other domain—air, land, sea, and outer space—renders international law more impotent and irrelevant in contemporary society. This article examines the major cyber attacks that have occurred, and consequently uses them as case studies to evaluate whether we can use current laws to effectively adjudicate cyber attacks. Ultimately, the author argues that without improvements in technology, the inability to impose effective attribution and the very nature of cyber warfare make current laws nearly obsolete.

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Cyber Warfare: The Destruction of Westphalian Paradigms

How do you impart justice in a community where each member can don the Platonic “Ring of Gyges?” Such is the current nature of cyberspace; countries and individuals can become invisible in the cyber domain, commit cyber crime and cause damage to the physical world, then retreat into obscurity without even physically encroaching on another state’s territory. The introduction and increasing prevalence of cyber warfare has altered traditional paradigms of our Westphalian system of state sovereignty and established boundaries, necessitating the alteration of international law to maintain its relevance in a world with five domains instead of four. First, I will analyze the background of cyber conflicts and how cyber weapons are used. Next, I will examine the relationship between current international law and cyberspace, focusing on the capability of international law and institutions to adjudicate and enforce conflicts in cyberspace. Finally, I will argue that without advancements in identification and tracking technology, the potency of international law in relation to cyberspace will be insignificant and inapplicable. A Brief Overview of Cyber Conflict The 2010 Stuxnet worm marked the first major use of cyber warfare as a strategic tool in international conflict. Previously, there had been accounts of minor uses of cyber attacks, such as in Estonia in May of 2007 when “the websites of banks, ministries, newspapers, and broadcasters” were assaulted, leaving Estonia “without the means to tell the world it was under attack.”1 While no state gained or claimed responsibility for the action, the incident brought the concept of cyber warfare to the table. Three years later, the Iranian gov1 Jeffry T.G. Kelsey, Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare, 106 MICH. L. REV. 1427, 1429 (2008)

ernment discovered a worm—Stuxnet—that had breached their system and corroded the centrifuges of Iran’s nuclear facilities, setting nuclear development months and even years back. The targeted nature of the attack, as opposed to Estonia’s blanket attack on relatively open-access websites and programs, showed that cybertechnology could be used to pinpoint individual programs in secure industrial-control facilities. While no state or organization claimed responsibility, as it was impossible to trace the worm back to its source, it is believed that the U.S. government acted in collaboration with the Israeli government to unleash this attack.2 The Stuxnet worm showed the world that cyber attacks could do more than just inconvenience states. Since then, cyber attacks have grown in frequency and potency. Within the last two years, a large number of American financial institutions were taken offline by various cyber attacks, costing them millions of dollars. In the past year, South Korea experienced a massive cyber attack that disabled 32,000 computers of banks and television networks.3 These events raise the questions: how do we adjudicate these crimes when there is a lack of physical damage or breach of territory, and is international law possible in a domain where we do not necessarily have the capacity to trace the perpetrator?

2 William J. Broad Et. Al., Israel Tests Called Crucial In Iran Nuclear Setback, N.Y. TIMES, Jan. 15, 2011, at A1; Chris Demchack & Peter Dombrowski, Rise of a Cybered Westphalian Age, 35 THE WILSON QUARTERLY 57,57 (2011) 3 Nicole Perlroth & David E. Sanger, Cyberattacks Seem Meant to Destroy, Not Just Disrupt, N.Y. TIMES, March 29, 2013, at B1.

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Cyber Warfare: The Destruction of Westphalian Paradigms Interpreting a Cyber Attack through Codified and Customary International Law If a party launches a Distributed Denial of Service (DDoS) attack on the banking system of a country, causing infrastructural disarray but doing no physical damage, does that constitute an “armed attack” justifying the right to self-defense?4 Does such an attack violate the nation’s territorial integrity? First, we must look to codified law to determine a cyber attack’s relation to the use of force. Article 2(4) of the UN Charter states that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”5 This provision has limited value in modern conflict, especially in cyberspace. Not only is it unclear whether the perpetrator is a State—while the Charter tailored the phrasing of the article to apply only to states, by saying “all Members,” Article 2(4) is widely recognized as customary international law and therefore could arguably imply all parties6—it is even more difficult to determine whether the act in question, non-kinetic and not physically destructive, was in fact a use of force. The United Nations’ Definition of Aggression enumerates military occupation or attack by “armed forces of a State,” bombardment or “use of any weapons by a State against the territory of another State,” the blockade of ports or coasts, or any attack by “land, sea, or air” on land, sea or air fleets of another state. 7 A cyber 4 UN Charter art. 51 5 UN Charter art. 2, para. 4. 6 Assessment of Customary International Law, INTERNATIONAL COMMITTEE OF THE RED CROSS, http://www.icrc.org/customary-ihl/ eng/docs/v1_rul_in_asofcuin

7 G.A. Res. 3314 (XXIX), U.N. GAOR, th 29 Sess., U.N. Doc. A/ RES/3314, at 142 (Dec. 14, 1974).

attack meets none of the conditions; it constitutes neither a land, nor sea, nor air attack; furthermore, such a DDoS attack leaves ports and coasts intact while still enabling the same effect of economic paralysis as seen in Estonia and South Korea. Finally, it remains unclear whether a cyber attack or the cyber division of a state represents “armed forces.”8 The nature of a cyber attack has thus managed to circumvent the semantic safeguards imposed by the UN Charter and the Geneva Conventions, rendering codified international law either ambiguous or inapplicable. However, international law has one other tool to assert its applicability in the situation of a cyber attack: customary law and past practice. In order to determine whether a State has the right to retaliate in the name of self-defense to an attack, it is necessary to examine past judicial decisions regarding the use of force and the right to collective self-defense. Unfortunately, there has been no case where a non-kinetic use of force is applied. That said, the 1986 Nicaragua v. U.S. case sheds light on what justifies invoking the self-defense clause. The International Court of Justice’s ruling against the U.S. was due, among other reasons, to the U.S. using force against another state, interrupting peaceful maritime commerce, and breaching obligations under the Treaty of Friendship, Commerce and Navigation.9 By applying this reasoning to a cyber attack that disables government and financial operations, the attacker still interrupted peaceful commerce—albeit not maritime—and most likely undermined the territorial integrity of the State by hindering its ability to function properly. The Nicaragua case, however, also determined that armed attacks involve certain “scale and effects,” omitting certain events such as 8 Id. 9 LORI F. DAMROSCH, International Law: Cases and Materials 1170 (2001).

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Cyber Warfare: The Destruction of Westphalian Paradigms

“mere frontier incident[s].”10 This precedent is currently inapplicable in cyberspace due to the fact that frontiers and boundaries are not delineated. Another way international law may still apply to cyber warfare lies in Article 4 of the Definition of Aggression, which states the non-exhaustive nature of the list established in Article 3. The court could determine that an attack via cyberspace is equal to an attack by land, sea, or air, and consequently deem the attack a use of armed force.11 All cyber-related legal interpretation, however, is still rooted in the hypothetical, and while we can speculate how the ICJ would interpret an act, in the end “international law is not definitive on whether cyber techniques such as DDoS are legally considered ‘attacks’ or ‘weapons’, and whether cyber attacks can be considered legitimate acts of ‘armed conflict’.”12 The issue of attribution delivers the largest blow to international law. For adjudication to take place, there must be definitive incriminating evidence against a perpetrator. However, it is much easier to encrypt an IP address than to track and decrypt one; even if the source of a cyber attack is detected, there is even more ambiguity about whether the attack came from a state or a non-state actor. For example, a non-state-affiliated group called the Izz ad-Din al-Qassam Cyber Fighters recently claimed responsibility for attacks on U.S. private businesses, but in a press conference, American intelligence offi10 Michael Schmitt, Cyber Operations and the Jus in Bello: Key Issues, 87 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 89, 130 (2011). 11 G.A. Res. 3314, supra note 6. 12 Joshua Kastenberg, Non-Intervention and Neutrality in Cyberspace: An Emerging Principle in the National Practice of International Law, 64 A.F.L. REV. 43, 53 (2013).

cials stated that the group was most likely just a “convenient cover for Iran.”13 The nature of cyberspace—without appropriate technology at our disposal—creates a fog of attribution by which states can claim to be non-state actors and vice versa, leaving the victim of a cyber attack legally incapable of creating a concrete basis for prosecution. The fact that the cyber attacks on Estonia, Georgia, South Korea, Iran and the United States have all gone untried and unsolved further proves that current technological incapability in cyber domain has rendered international law obsolete. A final issue that plagues politicians to date is the concept of neutrality in cyberspace. A state or non-state actor’s attack may be identified by a state’s cyber defense systems, therefore, relinquishing the attacker’s neutral status. But what if the victim state takes cyber refuge in a third party state as Estonia did with the United States? The law remains unclear as to whether the third party, who probably has better cyber capabilities, would have the right to collective self-defense—as per Article 51 of the UN Charter14—on the cyber front, due to the previously mentioned uncertainty of attributing a cyber-attack to Article 2(4) or under the Definition of Aggression.15 The only circumstance in which a country is authorized to use Article 51 as recourse is in the event of an “armed attack”16; however, since the Nicaragua case-which first shed light as to what constitutes an armed attack-only deals with kinetic force, the ability of a state to evoke Article 51 remains dubious and untested.17 13 Nicole Perlroth & David E. Sanger, Cyberattacks Seem Meant to Destroy, Not Just Disrupt, N.Y. TIMES, March 29, 2013, at B1. 14 UN Charter, supra note 4. 15 UN Charter art. 2, para. 4; G.A. Res. 3314, supra note 6. 16 UN Charter, supra note 4. 17 Damrosch, supra note 9, at 1170.

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Cyber Warfare: The Destruction of Westphalian Paradigms Furthermore, if a country does retaliate with its own cyber attack, does the situation merit the label of “armed conflict,” interpreted as “any difference arising between two States and leading to the intervention of members of the armed forces”?18 If so, and the conflict escalates into armed conflict, a legal evaluation of the situation would have to assess cyber conflict in relation to the Geneva Conventions, which establishes regulations for engaged combatants, in addition to the UN Charter. In this situation, there still remains obscurity as to whether the armed conflict falls under Common Article 2, which regulates international conflicts, or Common Article 3, which regulates non-international conflict, of the Geneva Conventions. 19 This distinction is paramount, as each article differs in relation to the ability of other countries or international organizations to assist the rebel group, as well as to the minimum requirements for each side to observe when engaged in armed conflict. In addition, the majority of cyber attacks, while targeting the government, have had negative impacts on civilians as well. According to Article 51 of Additional Protocol I to the fourth Geneva Convention, any civilian “enjoys general protection against dangers arising from military operations” and forbids direct or indiscriminate attacks that would otherwise target or affect civilians without distinguishing between civilians and combatants.20 In this case, certain DDoS attacks that 18 19

disrupted government websites and domestic banking systems would potentially be deemed in violation of the Geneva Conventions due to their indiscriminate natures. That said, without attribution there would be no legal precedent to prosecute such crimes. Conclusion Given its non-kinetic nature and the difficulty of attribution, cyber warfare necessitates the creation of new internationally applicable laws to eliminate the grey area of cyberspace. Otherwise, international law will not be able to adequately respond to the changing nature of the global environment. By sticking to the Westphalian system in a space where boundaries are not so concrete, international law may soon become antiquated and irrelevant in the cyber domain as a whole. Armed attacks are no longer as clear-cut as they were during U.S. intervention in Nicaragua; agents can create as much havoc from thousands of miles away. Ultimately, the relevance or irrelevance of international law is determinant not on policies but on technology. Until we find a way to consistently identify the origin of a cyber attack and the nature of the perpetrator, state and non-state actors alike will be able to evade the international judiciary system in its entirety.

Schmitt, supra note 9 at 130.

The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art.2, Aug. 12, 1949 185, 187 available at http://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf; id. at 185. 20 Protocol Addition to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, INTERNATIONAL COMMITTEE OF THE RED CROSS, http://www. icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=D9E6B6264D7723C-

3C12563CD002D6CE4

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Georgetown University Pre-Law Society

Volume I: issue I: Spring 2014  

Georgetown University Undergraduate Law Review

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