National Press Club Series 2012-2013

 

 

 

 

 

This symposia series is sponsored by The Catholic University of America Columbus School of Law. Programs are held at the National Press Club in Washington, D.C.

 

 

 

 

 

LECTURES

November 2012
The Tracking Clash:
The Judicial, Legislative 

and Executive Branches Grapple with U.S. v. Jones
and the Use of 
Geolocation
and Biometric Tracking


February 2013
TBA

 

 

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The Tracking Clash:
The Judicial, Legislative 
and Executive
Branches Grapple with U.S. v. Jones
and the Use of 
Geolocation
and Biometric Tracking

 
Presented by Anne T. McKenna, Chair, SilverMcKenna,
The Internet and Privacy Law Practice Group of Silverman|Thompson|Slutkin|White|LLC;
Adjunct Professor, The Catholic University of America


National Press Club
529 14th Street, NW 13th Floor
Washington, DC 20045


The Supreme Court has recently unanimously held that law enforcement’s warrantless attachment of a GPS device to a car and subsequent warrantless use of the device to track the vehicle constituted an unlawful search in violation of the Fourth Amendment. Its decision in United States v. Jones fundamentally changed the legal landscape for government use of GPS tracking devices. Jones, however, is not just about the Fourth Amendment and GPS devices. Three justices also questioned the feasibility of privacy law based upon the reasonable expectation of a privacy test in the face of pervasive private industry and government GPS tracking. The justices’ concern underscores a looming conflict: the United States lacks a comprehensive approach to privacy and tracking policies and has failed to pass a technologically adaptive privacy and tracking legislative scheme.

 

The Supreme Court’s ruling clashes with federal, state and local law enforcement GPS-tracking practices. Congress seeks to remedy the disconnect between the courts, the law, and both private and public-sector entities’ use of tracking technologies via several proposed bills in the House and the Senate that would specifically target and regulate location privacy. Four experts from academia, private practice,and Congress will explore the conflict between case law, statutory law, and law enforcement practice. They will discuss feasible legislative and judicial solutions that preserve constitutional liberties while enabling the government to use available technology to protect our people and institutions.


Panelists

Janet C. Fisher, General Counsel, House Permanent Select Committee on Intelligence, will consider proposed legislation that seeks to address tracking and privacy. Fisher holds a Top Secret/Sensitive Compartmented Information Access security clearance and handles legislative and legal matters related to the Foreign Intelligence Surveillance Act (FISA), cyber security, emerging technologies, and intelligence program authorizations. Fisher served with the Department of Justice’s National Security Division from 2006-2011, where her duties included counterterrorism cases before the Foreign Intelligence Surveillance Court, as well as emerging technologies, and matters before Congress. Prior to government service, Fisher practiced with Williams & Connolly LLP and was a judicial clerk to the Honorable Richard W. Roberts, U.S. District Court for the District of Columbia. She received her B.S. in Industrial and Labor Relations from Cornell University and her J.D. from Harvard Law School.

Clifford S. Fishman, Professor of Law, The Catholic University of America Columbus School of Law, will highlight the existing statutory and Constitutional case law framework upon which the Jones tracking decision was based. Professor Fishman served for eight years as an assistant district attorney in the New York County District Attorney's Office and as chief investigating assistant district attorney in New York City's Special Narcotics Prosecutor's Office. He teaches criminal law, criminal procedure and evidence at the Columbus School of Law and is the co-author of Wiretapping and Eavesdropping; Surveillance in the Internet Age, 3d ed. with his co-author, Anne T. McKenna, along with numerous scholarly articles about various aspects of search and seizure, electronic surveillance, and evidence.

Anne T. McKenna, Partner, Silverman|Thompson|Slutkin|White|LLC, Chair of STSW’s Internet and Privacy Law Practice Group, SilverMcKenna, and Adjunct Professor, The Catholic University of America, will consider government and private industry’s use of tracking technology with GPS-based and biometric-based tracking. For two decades, McKenna has handled complex civil litigation and Internet, cellular and computer-related legal matters for businesses, educational and institutional clients, and individuals. As a litigator and co-author of the treatises Wiretapping & Eavesdropping: Surveillance in the Internet Age, 3rd Ed., and Jones on Evidence, 7th Ed., McKenna is one of the nation’s leading and most-cited experts in Internet, computer and cellular electronic surveillance law and privacy law. McKenna consults with federal and state law enforcement regarding computer searches, cellular technology, cellular and GPS tracking, and related legislation. As an Adjunct Faculty member, McKenna teaches about privacy, surveillance, and media law. McKenna is frequently interviewed by and consults with media outlets including FOX News about privacy, tracking, Social Media, biometrics, and Fourth Amendment issues.

Kannon K. Shanmugam, Partner, Williams & Connolly LLP and former law clerk to Supreme Court Justice Antonin Scalia, will consider the judicial branch’s potential response to these proposed bills and electronic tracking. Shanmugam focuses on Supreme Court and appellate litigation for Williams & Connolly and has argued 12 cases before the Supreme Court—more than any other lawyer in the firm’s history except its legendary founder, Edward Bennett Williams. Shanmugam received his A.B. summa cum laude from Harvard College in 1993; his M. Litt. from the University of Oxford, where he was a Marshall Scholar; and his J.D. magna cum laude from Harvard Law School, where he was executive editor of the Harvard Law Review. Shanmugam has also served as law clerk to Judge J. Michael Luttig, United States Court of Appeals for the Fourth Circuit.


Moderator

Hon. Joseph F. Murphy, Jr., retired from Maryland’s Court of Appeals in 2011 and now heads the Alternative Dispute Resolution practice of Silverman, Thompson, Slutkin & White, LLC. Before his 1984 appointment to the Circuit Court for Baltimore County, Judge Murphy practiced law as a Legal Aid staff attorney, an Assistant State’s Attorney for Baltimore City, the Deputy State’s Attorney for Baltimore City, and a partner in the Towson-based law firm of White & Murphy. He was appointed to the Court of Special Appeals in 1993 and became its Chief Judge three years later, a position he retained until his 2007 appointment to the Court of Appeals. He is the author of the Maryland Evidence Handbook, teaches Evidence at the University of Baltimore Law School, and teaches Trial Practice at the University of Maryland Law School.