Orin Kerr

Bulgaria's government fell today, so I thought I would repost this article as potentially relevant again.
papers.ssrn.com/sol3/papers....

Forcing an already-charged criminal defendant to submit to a cheek swab for DNA requires a warrant, Minnesota Supreme Court holds. Maryland v. King does not apply.
mn.gov/law-library-...

I opened a 2009 book review with this thought experiment about the law in 2035, which seemed entirely plausible at the time.

Missed opportunity to cite Judge Pryor's 2022 ruling on this question for the 11th Circuit on this issue, but maybe they didn't cite it because it's out of circuit.

Motion For Order – #12 in RICHMAN v. United States (D.D.C., 1:25-mc-00170) – CourtListener.com MOTION for Order to Dissolve Temporary Restraining Order by UNITED STATES OF AMERICA. (Bailey, John) (Entered: 12/09/2025)

DOJ responds:
storage.courtlistener.com/recap/gov.us...

Interesting, thanks!

Chapter 7 of my recent book, "The Digital Fourth Amendment," is all about why I take the same view as the district court in Smith. (At the district court, Judge Rakoff generously cited an online talk I gave about the chapter in his opinion.)

The book: www.amazon.com/Digital-Four...

Oral Argument for United States v. Smith – CourtListener.com Oral Argument for United States v. Smith

I learned recently that the Second Circuit held argument this summer in the US v. Jatiek Smith case, on whether the border search exception applies to digital devices. The district court, per Rakoff, said no. No opinion yet, but the argument is here:
www.courtlistener.com/audio/99586/...

Off the top of my head, there would seem to be some pretty interesting Fourth Amendment reasoning implicit in this result. I look forward to the reasoning being made explicit. storage.courtlistener.com/recap/gov.us... #N

Usually the same.

Absent more, an employee’s resignation does not cancel her employer’s authorization. The reason: an employee’s resignation is not her employer’s action. It is her own. An employee cannot rescind the permission her employer gave her any more than an employee can provide permission her employer has not given. Only her employer can do that. After all, whether an employee is authorized to access her employer’s computer “depends on actions taken by the employer.” Id. Thus, absent prior agreement, an employee’s resignation does not revoke her employer’s authorization. Her employer must perform some affirmative act to revoke it.1 Accord Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016) (“[A] defendant can run afoul of the

3d Cir. holds that it did not violate the CFAA for employee to continue accessing her employer's email account after she resigned because employer had not affirmatively rescinded a prior grant of permission.

www2.ca3.uscourts.gov/opinarch/233...

Agreed, it's something to train for!

YouTube video by University of Pennsylvania Carey Law School American Law Institute Oral History: Herbert Wechsler: Part 1

Columbia law professor Herbert Wechsler, here interviewed about his career in criminal law and about the drafting of the Model Penal Code. (The interview was conducted in 1989, when Wechsler was 79; he passed away in 2000.)
youtube.com/watch?v=sgMS...

I know where I will be in June 2028. And I'm glad I have two and half years to prepare.
sfopera.com/operas/ring-...

Right, the article is from 1941.

A First Amendment retaliation suit claiming the government searched you to retaliate for your speech requires pleading the absence of probable cause for the search, CA4 holds, agreeing with the CA5.
govinfo.gov/content/pkg/...

Not sure I follow.

The conclusion.

Courts have gutted the exclusionary rule, destroying its value, by creating so many exceptions to it, law review article "Circumventing the Fourth Amendment" argues . . . in 1941.

You lay out the evidence, but you don't reconstruct to the jury how you found it or what led to the complaint.

Why would you present the use of AI in court?

Kind of inherent in speculation, I would think! But if you need the pieces explained, the government's case is based largely on matching up otherwise unrelated sources that would involve massive amounts of data, and they say they combed over all that data again.

Seeing lots of questions about how investigators could somehow find the "needle in a haystack" now while they couldn't find it several years ago.

One possibility: AI.

AI is much more advanced today than a few years ago, and it's very good at going through haystacks of data to find needles.

Maybe the problem is that I live in California. Hard to remember the last time that visibility was poor and conditions were hazardous. :)

Judge Wilkinson today on the 4th Amendment and digital technology. www.govinfo.gov/content/pkg/...

Video of the shooting wasn't super clear, but it was clear enough to resolve the legal issue here—whether there was probable cause to believe that the individual shot posed a threat of serious physical harm. Here, there was. (per Scudder, J.)
media.ca7.uscourts.gov/cgi-bin/Opin...

I suppose there's a philosophical question of what information about the world we should consider (a)reliable, (b) of uncertain reliability but somewhat relevant to our sense of the world or (c) completely 100% irrelevant. I tend to look at the data and slot it as (b), you look at it and slot it (c)

Got it. I can see wanting to have independent verification, of course. At the same time, "I can't put any value on this at all" seems like a quirky overreaction.

It's a 2006 study of taxi versus regular drivers.

Why is it disturbing?