Volume 70, Issue 3


Volume 70, Spring 2018, Issue 3


Monetizing Shame: Mugshots, Privacy, and the Right to Access

Eumi K. Lee

Created for the purpose of criminal identification and investigation, mugshots have become a commodity in the digital era, exploited for financial gain. Although much public attention has been focused on commercial mugshot websites and their practice of charging fees for the removal of these images, the problem is far more widespread. Law enforcement agencies, news outlets, and tabloids have created modern-day “rogues’galleries” online, indiscriminately publishing mugshots of individuals, many of whom were never prosecuted or convicted. The mass publication of mugshots online permanently stigmatizes millions of Americans with the mark of criminality and undermines two basic principles of our criminal justice system-presumed innocence and redemption. This Article explores the commodification and commercialization of mugshots and the constitutional and statutory laws that govern their availability. This Article asserts that current state laws fail to address the realities of the digital era and the greater privacy interests that are implicated through permitting open access to mugshots. Because the majority of states deem mugshots open records under their public records laws, mugshot companies and the press have the constitutional right to publish them. The Article proposes that the presumption should be switched and that mugshots should be deemed closed records that are generally not disclosed to the public. This change would be in line with the trend under federal law and would provide the protection necessary for the privacy interest at stake.


Cooperative Federalism and Federal Takings After the Trump Administration’s Border Wall Executive Order

Gerald S. Dickinson

The Trump Administration’s (arguably) most polemic immigration policy-Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States’-offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal immigration agenda pushed by the Trump Administration. These efforts to resist rely upon self-determined local and state policymaking or the federal courts to sustain sovereign autonomy. However, amidst the more well-known examples of “uncooperative federalism,” such as the travel ban and sanctuary cities, is a property law angle to “cooperative federalism.” A recently introduced bill in Congress may be viewed not only as a political reaction to an arguably heavy-handed federal immigration policy, but an aide-memoire to an old cooperative system of land acquisitions between the federal government and the states in the early republic.


Pokémon Go, Augmented Reality Games, and How the Insurance Industry Will Help Protect a Distracted Society from Becoming Even More Distracted

Justin G. Mignogna

Imagine a world where chaos, disorder, and madness are omnipresent. And in this world, all of the sudden, millions of people begin to erratically search for and capture imaginary creatures. In fact, people become so entranced with these imaginary creatures that they lose all touch with reality. They walk off of cliffs,’ they get swept out to sea, they join together with strangers to form packs and wander around all corners of the globe at all hours of the night, all looking to capture these imaginary creatures. Now, as farfetched as this may seem, what was just described is far from fiction. Instead, it is an accurate depiction of the world in the summer of 2016 when the most popular mobile game in history was unleashed to the public. That game was Pokimon Go. This Note seeks to address the recent phenomenon of Pokimon Go and how augmented reality (“AR”) games like it are going to be more popular and distracting in the years to come. For instance, a new Harry Potter AR game is set to be released in 2018 that will likely grab our society’s attention once again. Because of Pokimon Go’s wild success, businesses have already begun utilizing these kinds of games to attract customers to their locations.

The Cause of Action for Breach of Data?: The Problem with Relying on Courts When Managing the Risks of Cloud Services

Michael A. Stoolman

“If you spend more on coffee than on IT security, then you will be hacked. What’s more, you deserve to be hacked.”‘ If, as author and former Special Advisor to the President for Cyberspace Richard A. Clarke suggested in his keynote address at the 2002 RSA Conference, a cup of coffee’s worth of cybersecurity measures is inadequate, how much should a company spend to protect its information? How can that amount even be calculated? One certainty, as the above quote warns, is that attacks will not soon subside. Today’s reality of the pervasive threat to cybersecurity is made obvious by the range of headlines inundating the news cycles. From the Yahoo! breach of more than one billion user accounts, to the distributed denial of service cyberattack on Dyn, rendering websites like Twitter, Netflix, and PayPal inaccessible, the year 2016 alone showed no relent. And the threat is not limited to the commercial context-education, national security, and even politics have all been venues for cyberattacks. While appreciating the entire scope of the problem, this Note will more narrowly attempt to identify how a company should make the decision of contracting with a cloud services vendor. This involves assessing the harm and risk of a data breach, traversing the relevant legal framework, and, if necessary, spreading that risk through insurance.

The Crippling of the Anti-Terrorism Act Under Current General Personal Jurisdiction

Mark J. Marsella

This Note will focus on how two United States Supreme Court cases concerning jurisdiction-Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)-have affected the Second Circuit’s recent decision in Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016). Specifically, by limiting the jurisdiction of U.S. state and federal courts, Goodyear and Daimler have significantly hindered the ability of terrorist attack victims, such as the plaintiffs in Waldman, to sue foreign entities that would otherwise be liable under the Anti-Terrorism Act (18 U.S.C. f§ 2331-2339 (2012)) (‘ATA”). The narrowing of federal jurisdiction under Goodyear and Daimler, as applied in Waldman and similar cases, has effectively crippled the ATA and precludes victims from recovering the reparations the statute was designed to afford. There are, however, significant holes in the Second Circuit’s reasoning in Waldman. This Note identifies and examines those flaws, and argues that regardless of whether the outcome of Waldman alone is desirable, its flawed reasoning cripples an important statute and creates broader detrimental ramifications. This Note also explores the few ways in which the ATA may conceivably be reconciled with existing jurisdiction doctrine, once again allowing the victims of foreign terrorist attacks to seek civil remedies. These solutions include disentangling the separate Due Process jurisdictional tests; carving out an exception for the ATA under the language in Daimler; applying different jurisdictional analyses based on the nature of the foreign entity at issue; and adopting a due process analysis fitted to the unique aspects of civil actions against sponsors of foreign terrorism.