Search

TABLE OF CONTENTS I. CYBER THREATS TO CIVILIANS IN ARMED CONFLICT 361 II. OLD LAW, NEW WEAPON 364 A. Offensive Cyber Operations in Armed Conflict 365 B. International Humanitarian Law, [...], Russia's use of offensive cyber operations to further its illegal war against Ukraine has prompted calls for a response to these cyber operations from the International Criminal Court. However, the International Criminal Court is an inadequate forum for adjudicating cyber conduct in armed conflict because cyber operations fit awkwardly into the traditional war crimes legal framework. Furthermore, the Rome Statute's strict substantive and procedural features provide strict limitations on the kinds of cyber conduct that might constitute a war crime against which the Prosecutor of the International Criminal Court could bring an effective case. Because most cyber conduct does not produce kinetic effects, the established framework of international humanitarian law that the Rome Statute reflects does not comprehensively regulate the unique domain in which cyber operations occur. This Note argues that observers have overlooked a more promising way of addressing illegal cyber operations in armed conflict: the right to life under international human rights law. As a more malleable body of law that mutually reinforces international humanitarian law, human rights law--and the right to life, in particular--can capture more cyber conduct and hold armed actors accountable for their harmful effects on civilians. Addressing cyber operations through human rights law will also accelerate the development of the law governing cyber operations and encourage a more interdisciplinary approach to evaluating how the cyber domain is governed by complementary fields of international law.

The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes. The Fourth Amendment--the constitutional protection meant to limit police search powers--has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about "reasonable expectations of privacy" and "trespass" searches. While the Supreme Court has acknowledged that "digital is different," it has not yet provided a coherent theory to protect individuals from growing digital surveillance. This Article offers an alternative Fourth Amendment theory based on the harm of rummaging--a principle that can trace its lineage from the Founding debates around General Warrants and the Writs of Assistance to the Supreme Court's most recent cases on cell phone location data. Fear of government agents rummaging into private homes and papers motivated the passage of the Fourth Amendment and has remained a doctrinally coherent throughline recurring in Fourth Amendment cases. This Article develops the "rummaging test" as a new way to see the harms of government collection of digital evidence. The Article excavates rummaging as an original justification for the Fourth Amendment and then demonstrates how the digital rummaging concept perfectly responds to the harms of government surveillance in the digital age. The rummaging test recognizes that the arbitrary, overbroad, invasive, exposing collection of personal data reflects the same harms that gave rise to the Fourth Amendment in the first instance. The Article seeks to refocus attention on the government's power to rummage through personal data by examining legal challenges around smart-home data and long-term pole cameras. The hope is to move the longstanding background principle against rummaging to the foreground of Fourth Amendment analysis and thereby answer some of the hardest questions facing courts confronting challenges to digital surveillance., TABLE OF CONTENTS I. RUMMAGING AND THE FOURTH AMENDMENT A. The Role of Rummaging in Fourth Amendment History 1. The English Background 2. The American Colonial Experience 3. Boyd v. [...]

I. THE STRICT CONSTRUCTION OF FEDERAL RULE OF CRIMINAL PROCEDURE SIX A. Government personnel B. Preliminary to or in connection with a proceeding C. Particularized need II. AMERICAN PRIVACY LAW [...]

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement [...]

Digital forensics is a topic that has been popularized by television programs such as CSI. Crime-solving glamour and drama aside, the reality is that the digital forensics process is a [...]

I. INTRODUCTION The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. (1) The parties to litigation must be able to review the [...]

INTRODUCTION I. THE LENS OF SOCIAL MEDIA A. General Features of Social Media B. Social Media Content as Evidence II. CURRENT APPROACHES TO SOCIAL MEDIA EVIDENCE AUTHENTICATION A. The Applicable [...]

TABLE OF CONTENTS Introduction I. The Ancient Documents Rule--Authenticity Rule and Hearsay Exception II. Does the Rationale for the Ancient Documents Exception Apply to ESI? III. Arguments Against an Amendment [...], The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions--easily retrievable today--to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old--meaning that the factual assertions made by way of these electronic media are potentially admissible for their truth at a trial if (and simply because) they were made more than twenty years ago. This is due to Federal Rule of Evidence 803(16), the so-called "ancient documents" exception to the hearsay rule. Under the ancient documents exception, documents that would normally be excluded as hearsay are admissible if the document is at least twenty years old, and if the party offering the document can show that the document is "genuine," or authentic. As electronic communications continue to age, all of the factual assertions in terabytes of easily retrievable data will be potentially admissible for their truth simply because they are old. This Article argues that the ancient document exception needs to be changed because its rationale, while never very convincing in the first place, is simply invalid when applied to prevalent and retrievable electronically stored information (ESI). Part I of the Article discusses the rationales for the ancient documents rule and that exception's relationship with the rules of authenticity on which it is based. Part II addresses whether the rationales for the ancient document exception, such as they are, can be sensibly applied to ESI. Part III raises and answers some arguments against abrogating or restricting the ancient documents exception as applied to ESI or even more broadly. Part IV considers drafting alternatives for changing the ancient documents exception in light of its pending risk of use as a loophole for admitting unreliable ESI as evidence.

B. Cases Following in Da Silva Moore's Footsteps A number of cases followed the predictive coding trail begun in Da Silva Moore. One such case, decided mere months later, is [...]

INTRODUCTION I. THE RISE OF ELECTRONIC DATA AND AN INTRODUCTION TO PREDICTIVE CODING A. The Electronic Revolution B. Concepts and Terminology Surrounding Predictive Coding II. PREDICTIVE CODING AND THE LEGAL [...]

TABLE OF CONTENTS INTRODUCTION I. THE RISING COST OF E-DISCOVERY A. Key Differences Between Traditional Discovery and E-Discovery B. The Cost of E-Discovery C. The American Rule Governing E-Discovery Costs [...]

1. Introduction "The interests of efficiency require that a case gets to trial as soon as possible with the best set of documents that can be amassed to assist in [...], Litigation practice has been significantly altered by the advent of electronically stored information in daily corporate life. It is argued that the laws of disclosure should be updated to recognise that technology-assisted document review via keyword searching is crucial in ensuring that the costs of litigation are well managed. In order to facilitate keyword searching, a new legal concept of accuracy in the selection of keywords should be introduced into the laws of disclosure. At the same time, despite the adversarial nature of litigation, it is imperative that parties approach electronic disclosure with a spirit of collaboration in order to achieve collective savings of time and resources. Keywords. Litigation, Disclosure, Keyword Searches, Electronic Documents, Technology

This Article examines the proposition that all digital data sought to be introduced and admitted as evidence should be subject to a heightened showing of reliability and testability. This objective [...]

Introduction (1) It is rare that we in the legal profession are fortunate enough to have on record expansive, deliberative, and real-time jurist insight about an area of law. An [...]

A recent appeal before the Court of Appeals of Michigan, Julie Ann Zulkiewski v. American General Life Insurance Company, (1) is of interest for a number of questions relating to [...]

I. INTRODUCTION II. ELECTRONIC DISCOVERY TERMS AND THE FEDERAL RULES OF CIVIL PROCEDURE A. Electronic Discovery Terms 1. Volume and Duplicability 2. Persistence. 3. Dynamic, Changeable Content 4. Metadata. 5. [...]

1. Introduction America is the world's foremost leader in developing electronic discovery (eDiscovery) protocols and procedures. Generally American corporations encounter international electronic discovery in two primary ways: those requests of [...], As technology is increasingly integrated into every aspect of the commercial environment, the amount of data generated from each transaction multiplies. Electronic discovery (eDiscovery) represents the collision of data and the law; in this paper, the powerful influence of the American judicial system is explored as it relates to the pursuit of digitally native file types for use in matters of litigation that transcend international borders. Home of the Silicon Valley, the world's biggest software companies, and the creative epicenter of social media technologies, America has also emerged as an early leader in establishing eDiscovery practices that are shaping the way the world manages electronically stored information (ESI). For business managers, eDiscovery represents the highest spike in litigation costs in decades and as such corporate litigants recognize the substantial financial risks of international electronic discovery. With each new filing, the very nature of commercial litigation has evolved into a complex battle of digital file types compounded by mountains of ESI. With constitutional safeguards, statute-based protections, and a leading position in developing the software and standards that are defining international electronic discovery, as a legal forum America offers a host of home field advantages for commercial litigation.

INTRODUCTION I. ATTORNEYS DEVELOP SEARCH TERMS BY WORKING WITH THE CLIENT TO DECIDE WHAT IS RELEVANT TO THE CASE A. The Purpose and Use of Search Terms B. Search Terms [...]

This fall, members of the Rutgers Computer and Technology Law Journal (RCTLJ) had the great honor to sit down with the Hon. Ronald J. Hedges, former United States Magistrate Judge, [...]

"The shift from physical evidence to digital evidence often leads to a shift in how investigators collect evidence; changes in how evidence is collected leads to pressure for new legal [...]

Abstract: The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. [...]

1. Introduction Information technology with its ability to store the information in digital form is gradually replacing the use of traditional paper based documents. Computerized machineries, like cellular phones, can [...], Traditional rules of evidence deny the admissibility of data messages on the mere ground that it is digitised. The South African Electronic Communication and Transaction Act (ECT) was enacted to enable the courts to admit data messages. South African legislation in this regard has followed a similar approach taken by the United Kingdom, the United States, Canada and the Model law. The use of electronic documents as evidence in court initially posed a number of conceptual challenges to the traditional statutory and common law in South Africa. On a close reference to provisional sentence summons in civil courts, South Africa has not yet amended the rules of civil practice to accommodate modern technology, for example, electronic discovery. The success of provisional sentence summons as one of the civil procedures to recover a debt is highly dependent on the liquidity of a document. Clearly, the authors of the definition of a liquid document may not have anticipated the development of technology to the extent that the traditional paper can be replaced completely by the electronic document. This paper seeks to discuss the challenges that may be faced by the courts when determining the admissibility of e-mail communication for the purpose of granting provisional sentence in South African civil courts. The ECT Act excludes liquid documents such as cheques and promissory notes. Therefore the focus of the paper is to discuss whether the requirements of a liquid document for purpose of provisional sentence summons can be met through the use of an e-mail evidence and the challenging aspects in that regard.

I. INTRODUCTION The August 2009 Department of Homeland Security (DHS) Directives on border searches of electronic devices and electronic media add additional guidelines to existing DHS policies; (1) however, officials [...], An analysis of the Department of Homeland Security's 2009 Directives on Border Searches of Electronic Media reveals the difficulty in striking a balance between protecting government interests in protecting the borders and preserving travelers' privacy interests. The 2009 Directives take some steps towards reaching this balance. They do not, however, adequately protect travelers' privacy interests, especially when taking into account the vast amount of personal information that electronic devices now carry. I make three suggestions to better strike this delicate balance: (1) Border officials should be required to have at least some reasonable suspicion before searching an electronic device; (2) Congress should require the DHS to conduct annual studies of their border searches, report their findings to Congress, and annually issue updated and concrete directives; and (3) Congress should require airlines to better inform travelers of the broad authority that border officials have in searching electronic devices.

INTRODUCTION I. THE FACTS OF PHYSICAL SPACE AND THE FACTS OF THE INTERNET A. The Inside/Outside Distinction 1. Outside and inside in physical investigations 2. Outside and inside in Internet [...], This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and noncontent information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESi) are not relegated to civil litigation, and that the subject matter has [...]

I. Introduction According to Blacks Law Dictionary, in rem [Latin for "against a thing"] is jurisdiction "involving or determining the status of the thing, and therefore the rights of persons [...]