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As a student-run journal, The Arkansas Journal of Social Change & Public Service thrives on student engagement through research and writing. Our Public Service Blog is full of topical analysis from students, and was founded with the purpose of encouraging students to write about issues that they find compelling. For the first issue of our seventh volume, the Journal‘s editorial board has decided to highlight the scholarship of our own staff by featuring student work that illustrates a broad scope of academic interests.

Caitlin Campbell’s Note, Mixed Signals: An Analysis of the Third-Party Doctrine as Applied to Warrantless Collection of Historical Cell Site Location Information, dives into the constitutional issues implicated by warrantless law enforcement access to the geographic location data collected by cell phone service providers.The piece is a must-read primer for understanding the monumental Carpenter v. United States case that is currently before the Supreme Court. Additionally, with consumers exchanging data for services at unprecedented scale, it has never been more important to examine the so-called “third-party doctrine” as a question of constitutional criminal procedure.

Zachary Hale’s Comment, Patently Unfair: The Tensions Between Human Rights and Intellectual Property Protection, looks at the historical development of international intellectual property regulation and its various conflicts with human rights. As global trade and intellectual property concerns are increasingly at the forefront of U.S. foreign policy, this piece provides insight into the ways that patent protections create obstacles for access to life saving technologies.

Mark Yablon’s Comment, It鈥檚 Time for the Civil Justice Sequel to Gideon v. Wainwright: Indigent Civil Litigants Deserve Appointed Legal Counsel, makes a policy argument for the appointment of counsel for indigent litigants and others of modest means. Individuals who find themselves without counsel on the wrong side of prohibitively expensive litigation may suffer consequences that amount to a deprivation of life or liberty. In light of the grave impact of the access to justice gap, appointed counsel may be necessary to ensure that our court system really does provide justice for all.

In furtherance of our commitment to student scholarship, the Journal will continue to promote and publish the work of its members and editors on critical issues of law and policy. We hope that our publications continue to provoke thoughtful conversation about the pressing topics of our time.

Sincerely,

The Arkansas Journal of Social Change & Public Service

As an academic journal, we at The Arkansas Journal of Social Change and Public Service encourage investigation and analysis of the social and political forces that shape our current situation, and we invite debate and discourse around the pressing issues of our time. If you would like to submit a blog post, a piece of scholarly commentary, or a full-length academic article, please reach out to us at socialchange@ualr.edu.

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By Mark P. Yablon*

It is hard to believe courts did not universally provide attorneys to criminal defendants unable to afford counsel until Gideon v. Wainwright in 1963[2] or to arrestees until Miranda v. Arizona in 1966.[3] Today, not providing these fundamental constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to working poor and indigent litigants is incomprehensible.

Similar rights should uniformly extend to certain civil disputes that could deprive one鈥檚 liberty, such as 42 U.S.C. 搂 1983 prisoner civil rights claims, divorce, custody, child support, parental termination, home foreclosures, receiverships of closely-held family businesses, and bankruptcies. Losing a child, home, or family business can be far more devastating to an individual and society than being briefly jailed. The civil justice gap also results in pro se litigants unintentionally delaying trials and unnecessarily frustrating courts and adversaries.

This article will review the civil justice predicament and offer some reasonable solutions.

I. No law bans involuntary civil appointments; circuit appellate courts require them; and the U.S. Supreme Court recognizes courts have inherent authority to conduct business.

Congress and the states have the ability to pass statutes to pay counsel for civil litigants who reasonably cannot afford assistance just as these legislative bodies fund counsel for similarly situated criminal defendants as the Constitution requires. Until Congress and the states properly fund this problem, society has to turn to more difficult options and half-answers.

For example, Congress empowered the U.S. Supreme Court from the beginning 鈥渢o adopt rules relating to admission to practice before the federal courts鈥� under 鈥淪ection 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch.20, 1 Stat. 73, 92 now codified as 28 U.S.C. 搂 1654.鈥漑4]  And 28 U.S.C. 搂 2071 says 鈥溾�榯he Supreme Court and all courts established by Act of Congress may . . . prescribe rules for the conduct of their business.鈥欌�漑5] An example of these rules are the Federal Rules of Civil Procedure 83: 鈥渁 district court . . . may adopt and amend rules governing its practice鈥� not inconsistent with these rules.[6]

And the U.S. Supreme Court empowers lower courts to conduct business as they reasonably see fit per Young v. United States ex rel. Vuitton et Fils S.A. because courts have the inherent authority to do so.[7] Many other courts have also explicitly affirmed this inherent authority. For example, courts may issue local rules that do not directly contradict binding authority and 鈥渞egulate the conduct of attorneys and to disbar attorneys.鈥漑8] This includes issuing local rules that require practicing attorneys admitted in a given court to be subject to involuntary civil appointments when a judge determines the need.

In Bothwell v. Republic Tobacco Co., the U.S. District Court for the District of Nebraska said, 鈥淪ince its inception the federal judiciary has maintained that federal courts possess inherent powers which are not derived from statutes or rules,[9] which came with the creation of courts.[10] So courts may order unwilling counsel to represent indigent litigants in civil litigations:

[T]his court鈥檚 inherent power to compel representation of the indigent exists for two primary purposes: (1) to ensure a 鈥渇air and just鈥� adjudicative process in individual cases; and (2) to maintain the integrity and viability of the judiciary and of the entire civil justice system. These two purposes mirror the dual functions that lawyers serve in the civil justice system. First, they act as advocates in individual cases working to peacefully resolve civil disputes between citizens. Second, by their ready availability to act in that capacity, they preserve the credibility of the courts as a legitimate arm of the civil justice system.[11]

Lawyers are needed to ensure a 鈥渇air and just process鈥� given the adversarial system.[12] Yet, indigent litigants do not have 鈥渁dequate access to [this needed] legal assistance.鈥漑13] This 鈥渇ailure threatens the reliability of the results of the adversarial process.鈥漑14] Therefore, the court held 鈥渨hen indigency is the principal reason for disparate access to the civil justice system in an individual case, a federal court does possess the inherent authority to bring about a fair and just adjudicative process by conscripting an unwilling lawyer to represent the indigent party.鈥漑15]

In 2015, the Fifth Circuit addressed a stark example that illustrates the need for civil appointments from the U.S. District Court for the Western District of Texas.[16] Plaintiff Mario Naranjo filed a 搂 1983 case in forma pauperis against 鈥渢he prison where he was incarcerated.鈥漑17] The trial court recognized he “demonstrated the exceptional circumstances to warrant the appointment of counsel.”[18] Regardless, the trial court said it lacked funding to require an attorney to represent him and 鈥渃ould find 鈥榥o attorneys in the area willing or able to take the case pro bono.鈥欌�漑19] While appealing the appointment ruling, the trial court added insult to injury by improperly continuing the proceedings and awarded summary judgment against Naranjo, which he also appealed.[20]

Rightfully so, Judge Jennifer Elrod of the Fifth Circuit Court of Appeals disagreed with the lower court鈥檚 ruling.[21] She held the lower court abused its discretion by not compelling counsel to accept the unpaid appointment.[22] She vacated the district court’s orders that denied counsel appointment and entered summary judgment against Naranjo.[23] Because the trial court has inherent authority to make an involuntary civil appointment unless the appointed attorney has good cause to decline, Judge Elrod remanded the case to district court to consider 鈥渨hether a compulsory appointment is warranted.鈥漑24]

A lack of judicial funds and poor judicial governance is dangerous to society. 鈥淸T]he reduction of governmental resources to provide legal services to the poor is, for them, a removal of the civil justice system鈥檚 accessibility (and thus, its legitimacy).鈥漑25] The judicial branch was created to include 鈥減eaceful resolution of private disputes between citizens and the protection of the minority from loss of their rights to the majority . . . .鈥漑26] But when powerful government agents or other wealthy litigants continually and successfully confront some of society鈥檚 weakest members鈥攊ndigents in jail and the working poor at risk of losing their children, homes, and businesses鈥攖his creates a recipe for societal and individual disaster significantly graver than facing the possibility of a short stay in county jail or extended time in state or federal prison.

Thus, courts may carry out justice in safe, ethical, and efficient ways to keep the public鈥檚 trust, to resolve disputes without litigants resorting to dangerous self-help, and to maintain order throughout the judicial system.

And even when attorneys are not paid directly for each workhour in these matters, they are compensated as members of a government sponsored oligopoly. As a private profession inextricably intertwined with courts and government, neither could operate without the other. Attorneys have unique duties, including being officers of the court to whom they voluntarily submit themselves. As such, these attorneys voluntarily subject themselves to the court’s reasonable direction in exchange for the privilege of being a servant attorney.

Litigants, however, have no choice. They are subject to the government-run judiciary and its attorney agents and officers. If one cannot afford representation, the system keeps running. Sadly, it too often keeps running over the unrepresented by coercing them into a system that can take away their rights and liberties. This is why certain impoverished civil litigants deserve Fifth, Sixth, and Fourteenth Amendment rights to counsel similar to those of criminal defendants.

Doctors and other licensed professionals do not share a similar bond so intricately tied to a dominating government. For example, government agents do not decide the outcome or process of every doctor鈥檚 physical exam or surgery. The same holds for plumber鈥檚 home repair. And, generally, the government cannot and does not coerce citizens to go to the doctor or install new plumbing fixtures against their desires. Also, nobody typically takes away one’s liberties for not going to the doctor or installing a stainless-steel sink.

Thus, attorneys are not similarly situated with other licensed professionals because of attorneys鈥� unique interdependent relationship with government. And individuals involuntarily or voluntarily embroiled in civil matters in courts are not similarly situated with those who interact with other licensed professionals. It has been no secret for centuries that attorneys have a different public burden to their paying and non-paying clients than other professionals have to society or their clients.[27]

II. To keep the public鈥檚 trust and to protect everyone鈥檚 constitutional rights, Congress, the states, and other institutions must ensure civil litigants have their fair day in court.

Courts may not tax and spend in traditional ways, which limits their ability to pay attorneys to represent impoverished civil litigants. But Congress and the states are equipped to ensure civil litigants have their day in court to defend against adversaries with experienced attorneys protecting their interests. Unfortunately, Congress and too many states remain virtually silent on the funding side of this growing crisis.

But some states, U.S. District Courts, and U.S. Circuit Courts of Appeal[28] are trying to solve this crisis through reforms, local rules, trial court rulings, and appellate holdings. In Texas, 鈥渁ttorneys have ethical obligations to represent their fair share of indigent clients that go beyond their duties to the court鈥� and 鈥渢hese obligations are formalized in the Texas Disciplinary Rules of Professional Conduct, which highlight the 鈥榤oral obligation of each lawyer鈥� to provide legal services to those unable to pay and require that attorneys accept court appointments absent good cause.鈥漑29] The New York State Court of Appeals began September 14, 2014, to require its thousands of annual bar applicants to perform 50 hours of pro bono work that 鈥渁ddresses the crisis in access to justice, and鈥攋ust as importantly鈥攈elps prospective attorneys build valuable skills and imbues in them the ideal of working toward the greater good.鈥漑30]

Examples of U.S. District Courts taking the lead include the Eastern and Western Districts of Arkansas and the Southern District of Indiana. The Arkansas districts passed Local Rule 83.7 Appointment of Counsel in 1987, as amended in 2009, to combat the growing problem of indigent litigants in civil cases unable to pay counsel. The rule mandates 鈥渁ll actively practicing private attorneys enrolled in the District in which the [indigent鈥檚 civil] case is pending鈥� are subject to 鈥渞andom selection.鈥� The U.S. District Court for the Southern District of Indiana passed a similar rule in 2016.

But this burden is relatively benign. The Eastern District of Arkansas made 38 voluntary and involuntary appointments (among 2,205 admitted attorneys eligible for appointment) in 1,271 pro se prisoner cases filed in a recent 18-month period.[31] Although, one Little Rock private practice attorney, Scott Strauss, criticizes the rule for excluding government attorneys and relying in practice on Little Rock attorneys instead of all admitted attorneys across the state.[32] Cases often involve 搂 1983 civil rights claims against prison officials as discussed earlier in Bothwell and Naranjo. Section 1983 prisoner claimants typically allege physical abuse, withholding necessary medical care or food, and wrongful solitary confinement. Cases also involve Title VII employment discrimination, religious discrimination, Social Security, and voting rights.

The Arkansas Lawyer just published an article that James M. Moody, Sr., former U.S. District Judge for the Eastern District of Arkansas and current Of Counsel at Wright Lindsey Jennings, and I wrote supporting Arkansas鈥檚 local rule.[33] That article is a counterargument to Strauss鈥檚 contention that no court has authority to compel attorneys to represent civil litigants for any purpose. He says, 鈥淯ncompensated appointments are illegal because the Constitution specifically prohibits an uncompensated taking.鈥漑34]

The current flawed system is better than no system for indigent litigants in civil cases. But there are better doable, yet meaningful, ways to help while waiting for proper funding. For one, law schools can help. With its 1975 founding, 糖心Vlog传媒 Little Rock William H. Bowen School of Law (as it is named today) pioneered helping impoverished civil litigants by starting a free legal clinic.[35] More law schools are now focusing on this experiential training aka real-world exposure for law students through clinics and externships while simultaneously helping the needy address their legal matters.

Some law schools and others have incubators for new attorneys. CUNY School of Law started the first U.S. legal incubator in 2007.[36] There are now more than 60 legal incubators,[37] including one the State Bar of Texas began in April 2017. With today鈥檚 high unemployment among recent graduates, incubators provide new attorneys income and affordable transitions to full employment.[38] But all law schools, states, and bar associations must step up and create win-win opportunities for all concerned on a significantly greater level.

Indigent civil litigants benefit because they could have free or reduced-fee legal help they otherwise could not afford. This will help relieve societal stresses where a large majority of unrepresented litigants may feel cheated by the system because they cannot afford counsel to advocate for them. Even first-year law students can help most pro se litigants going it alone鈥攋ust by helping with legal research, reasoning, and writing. Although law schools and incubators are not the perfect answer, they at least let some disadvantaged litigants know someone is listening and fighting for them.

Courts benefit because law students and inexperienced attorneys can run interference between pro se litigants and court staff. This saves courts time and money, thus mitigating everyone’s frustration. And courts would no longer have to strong-arm reluctant attorneys one-by-one to help. In fact, courts should collaborate with law schools to create volunteer panels of eager and competent law students and recent graduates who want courtroom experience and public service opportunities.

Law schools benefit because they can provide students with more meaningful real-world experiences, making the schools more appreciated and valued by taxpayers and students. If more of their students and recent graduates had real world experience鈥攅ither at no cost or on a sliding-scale鈥攖hose experiences would make them more marketable to employers and paying clients. Wouldn鈥檛 that influence more alumni to value their connection to their law schools? And, in turn, wouldn’t more alumni promote their schools and contribute more funds sooner if they were not left to sink or swim post-graduation?

Employers benefit because they would have better prepared new-attorney employees. Thus, they would be more enthusiastic about hiring graduates sooner for higher starting pay.

To resolve this constitutional crisis, Congress and the states must promptly provide meaningful funds to pay attorneys to represent impoverished civil litigants who face severe deprivation of their civil liberties in a similar fashion as they provide for criminal defendants. State bar associations and law schools should continue providing free or inexpensive labor except they should do so on a significantly grander scale.

But until proper resources are provided, courts have no choice but to use their inherent authority to compel practicing attorneys to assist these civil litigants. This also helps courts run more efficiently and restore public trust in the legal system. Unfortunately, until Congress and the states act, the courts’ patchwork solution remains on the backs of attorneys in private practice.

*Mark P. Yablon will graduate in May 2018 from the University of Arkansas at Little Rock William H. Bowen School of Law. Upon passing the bar, he will practice with Pittenger, Nuspl & Crumley in commercial litigation, family law, personal injury, and estate planning in north Texas. He is an executive editor of the Arkansas Journal of Social Change and Public Service and president of Bowen鈥檚 law student divisions of The Federalist Society, Federal Bar Association, and Pulaski County Bar Association.
[2] Johnson v. Zerbst, 304 U.S. 458 (1938) is the landmark case holding the Sixth Amendment guarantees all criminal defendants鈥攏ot just capital defendants鈥攆ree legal counsel if they cannot afford counsel. Gideon v. Wainwright, 372 U.S. 335 (1963) extended this fundamental right to the states through the Fourteenth Amendment.
[3] Miranda v. Arizona, 384 U.S. 436 (1966) is the landmark Fifth Amendment case that guarantees arrestees the rights to remain silent and to have counsel present once in police custody.
[4] Brown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985).
[5] Id. at 781-82 quoting 28 U.S.C. 搂 2071.
[6] Fed. R. Civ. P. 83.
[7] Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787 (1987).
[8] Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985) citing Theard, 354 U.S. at 281: Ex Parte Secombe, 60 U.S. (19 How.) 9, 13 (1856); see generally State v. Cannon, 206 Wis. 374 (1932) (reviewing cases from the Middle Ages to the nineteenth century).
[9] Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1225 (D. Neb. 1995) citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (“our courts no doubt possess powers not immediately derived from statutes”); Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (stating inherent powers are “governed not by rule or statute”).
[10] Id. citing Anderson v. Dunn, 19 U.S. 204, 227 (1821) (“[c]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose . . . submission to their lawful mandates”).
[11] Id. at 1227.
[12] Id. at 1229.
[13] Id.
[14] Id.
[15] Id.
[16] Naranjo v. Thompson, 809 F.3d 793 (5th Cir. 2015).
[17] Id. at 795.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 801-02.
[22]Naranjo v. Thompson, 809 F.3d at 801鈥�02.
[23] Id. at 795.
[24] Id.
[25] Bothwell v. Republic Tobacco Co., 912 F. Supp. at 1230 citing Louise G. Trubek, The Worst of Times . . . The Best of Times: Lawyering for Poor Clients Today, 22 Fordham Urb. L.J. 1123 (1995).
[26] Id. at 1229 citing Talamini v. Allstate Ins. Co., 470 U.S. 1067 at 1070-71, 85 L. Ed. 2d 125, 105 S. Ct. 1824 (1985) (Stevens, J., concurring) (“courts provide the mechanism for peaceful resolution of disputes that might otherwise give rise to attempts at self-help”); The Federalist No. 10, at 104 (J. Madison) (Hamilton ed. 1868) (warning against society where “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority”).
[27] Brown, 774 F.2d at 782 citing Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540 (1869).
[28] Particularly the Second, Third, Fifth, Seventh, Eighth, and Ninth circuits. See Naranjo, 809 F.3d 793.
[29] Naranjo, 809 F.3d at 805.
[30] See Advisory Committee on New York State Pro Bono Bar Admission Requirements: Report to the Chief Judge of the State of New York and the Presiding Justices of the Four Appellate Division Departments, September 2012, http://www.nycourts.gov/attorneys/probono/ProBonoBarAdmissionReport.pdf.
[31] Interview with James W. McCormack, Clerk of Court, U.S. District Court for the Eastern District of Arkansas, in Little Rock, Ark. (Oct. 25, 2017).
[32] Email from Scott Strauss, attorney in private practice in Little Rock, Ark., to author (Apr. 4, 2018, 11:45 CST) (on file with author).
[33] James M. Moody & Mark P. Yablon, Indigents in 搂 1983 Civil Rights Claims Deserve Appointed Legal Representation, The Ark. Law., Winter 2018, at 24, https://issuu.com/arkansas_bar_association/docs/winter_2018_issuu_9d354ee204e629.
[34] Email from Scott Strauss, attorney in private practice in Little Rock, Ark., to author (Apr. 2, 2018, 07:08 CST) (on file with author).
[35] Email from John DiPippa, Interim Dean and Distinguished Professor of Law and Public Policy, 糖心Vlog传媒 Little Rock William H. Bowen School of Law, to author (Apr. 3, 2018 12:36 CST) (on file with author).
[36] See American Bar Association, ABA Groups, Standing Committee on the Delivery of Legal Services, Initiatives & Awards, Legal Incubators,   https://www.americanbar.org/groups/delivery_legal_services/initiatives_awards/program_main.html.
[37] Id.
[38] See 2016 Comprehensive Survey of Lawyer Incubators: ABA Standing Committee on the Delivery of Legal Services (August 2016), https://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_comprehensive_survey_lawyer_incubators.authcheckdam.pdf.

The post It鈥檚 Time for the Civil Justice Sequel to Gideon v. Wainwright: Indigent Civil Litigants Deserve Appointed Legal Counsel appeared first on The Arkansas Journal of Social Change and Public Service.

by Zachary A. Hale*

I. Introduction

With globalization and international trade policy in the political spotlight, questions about how intellectual property protection impacts the enjoyment of human rights are of increasing importance to the national and international political discourse. In recent decades, the relationship between intellectual property and fundamental human rights has attracted increasing scrutiny. While the right to protection of the 鈥渕oral and material interests鈥� of an individual鈥檚 intellectual product is enshrined in the canon of international human rights, with explicit inclusion in the Universal Declaration of Human Rights (UDHR)[1] and the International Covenant on Economic, Social, and Cultural Rights (ICESCR),[2] the dominant regime of intellectual property rights has historically come into conflict with other fundamental human rights.[3]

The system of recognition and enforcement for intellectual property rights has run afoul of human rights principles by restricting access to protections to privileged classes throughout history.[4] This paper explores the historical and contemporary conflicts between intellectual property law and human rights, arguing that the current system of intellectual property protection threatens, and even actively violates, the enjoyment of several basic human rights.

Some key issues that bring intellectual property protection into conflict with the enjoyment of human rights are restricted access to medicines, patented food products, computer software, and educational materials, as well as the protection of traditional knowledge and indigenous materials.[5] The visibility of these topics is largely due to the controversy surrounding access to HIV/AIDS treatments, the biopiracy of indigenous seed-strains, and the implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPs).[6] There are, however, many other areas where potential tensions can arise, including access to computer software and cultural and educational materials. These issues bring the protection of intellectual property interests into conflict with the rights to food, health, education, self-determination, freedom of expression, cultural participation, and the benefits of scientific progress.[7]

Because the right to protection of one鈥檚 鈥渕oral and material interests鈥� in his or her 鈥渟cientific, literary, or artistic鈥� products is considered a basic human right,[8] the notion that intellectual property protection might conflict with the realization of human rights objectives may seem counterintuitive. The discussion of whether intellectual property protection is essentially in conflict with other human rights takes place within a broader debate over the priority of different 鈥済enerations鈥� of human rights.[9] In this context, although intellectual property is recognized in the ICESCR, a document enshrining 鈥渟econd generation鈥� rights, its ideological underpinnings in the liberal philosophy of John Locke places it more comfortably alongside the 鈥渇irst generation鈥� civil and political rights found in liberal-democratic constitutions. This potential misalignment has generated a tension that fuels debate around the proper interpretation of intellectual property rights in the framework of universal human rights.

The United Nation鈥檚 Economic and Social Council addressed this confusion in a 2006 comment to the ICESCR, stating that it is 鈥渋mportant not to equate intellectual property rights with the human right recognized in article 15.鈥漑10] Other international bodies, such as the United Nations Sub-commission on the Promotion and Protection of Human Rights, have also recognized a fundamental incompatibility between intellectual property instruments, like the TRIPs, and the enjoyment of other basic rights.[11] This interpretation, however, has been challenged within the United Nations system, with the United Nations High Commissioner for Human Rights, suggesting that intellectual property protection can coexist with human rights protection.[12]

In order to paint a clearer picture of how international intellectual property protections have developed alongside international human rights, the following section will trace their institutional history and ideological underpinnings.

II.  The Institutional History of International Intellectual Property and Human Rights

A. International Intellectual Property Protection Before the United Nations

As with many institutionalized aspects of liberal philosophy, the first concrete effort at coordinating the protection of intellectual property across borders occurred in Western Europe. The issue of inconsistent intellectual property protection was brought to the fore in 1873, when Vienna鈥檚 International Exhibition of Inventions failed to attract international inventors who feared their designs would be copied and re-appropriated without consequence.[13] This inconsistency led to the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. In 1893, parties to these conventions agreed to create a single bureau to regulate intellectual property in the areas of industry (patents and trademarks) and the arts (copyright).[14] This bureau, known as the Bureaux Internationaux R茅unis pour la Protection de la Propri茅t茅 Intellectuelle (BIRPI), consisted of fourteen member states, primarily Western European nations and their colonies, and remained the sole international body for intellectual property protection until the United Nations restructured the organization to create the World Intellectual Property Organization (WIPO) in 1960.[15]

Though the creation of WIPO signaled the transformation of the BIRPI from a keeper of European treaties to an agency responsible to the myriad member states of the UN, the undergirding philosophy of property-protection remained intact. If anything, the initial, industrialized members of the BIRPI saw its incorporation into the UN as an opportunity to introduce protection of intellectual property at the global scale.[16] However, the incorporation of member states at varying levels of development, coupled with new ideas about human rights in the international community, would eventually require the international system of intellectual property protection to adapt its instruments to a changing environment.

B. Intellectual Property and Human Rights at the United Nations

Before entering discussion of more recent institutional developments, it is germane to the object of this paper to examine the role of intellectual property in the United Nations preceding the incorporation of the WIPO. As noted above, intellectual property rights were included in the UDHR. Article 27 of the UDHR states that:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.[17]

This should not be interpreted as a consensus amongst the international community on how intellectual property should be regulated, or even on how to define the 鈥渕oral and material鈥� interests that deserved protection. As with many aspects of the UDHR, the inclusion of intellectual property was highly contested.[18] While a large number of states disagreed with Article 27, they were overpowered by states convinced of the material value of intellectual property protection. As Paul Torremans notes:

[T]he initial strong criticism that [intellectual property] was not properly speaking a Human Right or that it already attracted sufficient protection under the regime of protection afforded to property rights in general was eventually defeated by a coalition of those who primarily voted in favour because they felt that the moral rights deserved and needed protection and met the Human Rights standard and those who felt the ongoing internationalization of copyright needed a boost and that this could be a tool in this respect.[19]

This shift from discussion of intellectual property as a matter of trade law to discussion of intellectual property as a matter of human rights was furthered by the inclusion of intellectual property rights in Article 15 of the ICESCR, which took force in January of 1976. Article 15 states:

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.[20]

The sub-clauses of 15.1 are essentially a reiteration of Article 27, but the mention of 鈥渄evelopment and diffusion鈥� in 15.2 and 鈥渃o-operation in the scientific and cultural fields鈥� in 15.4 represent a radical shift in intellectual property interpretation. The conception of innovation in terms of market value and incentive systems was being challenged by ideas about human development, as is reflected in the suggestion that 鈥渢he full realization鈥� of the human rights aspect of intellectual property requires 鈥渢he diffusion of science and culture,鈥� a suggestion that was not present in the UDHR.[21]

The Patents Cooperation Treaty (PCT),[22] arguably the most important development in international intellectual property law between the ICESCR (1976) and the TRIPs (1995), serves as an example of the continued dominance of traditional intellectual property notions, even within the diverse arena of the United Nations. The PCT came into effect under the authority of the United Nations in 1978, four years after the incorporation of the WIPO. This treaty, certainly the most consequential undertaking of the international intellectual property community since the 19th century, was engineered by a group of neoliberal economists led by Edward Brenner (US Commissioner of Patents) and Arpad Bogsch (Deputy Director of BIRPI and first Director General of WIPO) in response to the concerns of multinational corporations about international patent applicability.[23]

The PCT set out to ensure that corporations with patents enjoyed equal protection in every country. This meant that a large pharmaceutical company could prosecute pharmaceutical actors around the world for using patented formulas as a starting point for generic drugs development. This protection provides a particular advantage to companies that already hold a large number of patents, as they can use patent-extending strategies to maintain a monopoly over formulas and technologies beyond the standard twenty-year limit.[24] Thus, twelve years after United Nations member states affirmed the value of diffusing scientific and cultural knowledge in the ICESCR, the WIPO became responsible for overseeing the regulation of such knowledge through the PCT. This protection, which largely favors companies with pre-existing patents,[25] set the tone for the most controversial institutionalization of intellectual property thus far, the TRIPs.[26]

The TRIPs, established in the 1994 Uruguay Round of the General Agreements on Tariffs and Trade, was the first attempt to put forth comprehensive protection for intellectual property through the World Trade Organization (WTO).[27] This agreement represented a monumental change in the field of international intellectual property law, pushing the protection of intellectual property into the center of international trade law.[28] It forced a minimum standard of copyright and patent protection on all 162 WTO members, severely hindering the distribution and development of agricultural and pharmaceutical innovations.[29] Though there have been subsequent agreements aimed at increasing access to 鈥渆ssential drugs,鈥漑30] the TRIPs and its restrictive prescriptions continue to dominate the institutional framework of international intellectual property.[31]

III.  Conflict Between Intellectual Property Protection and Human Rights

Although the right to the protection of 鈥渕oral and material interests resulting from any scientific, literary, or artistic production,鈥漑32] is a human right as defined in the UDHR and the ICESCR, the current system of intellectual property protection conflicts with and even violates rights that are considered to be fundamental to human life. Although intellectual property instruments are certainly used to violate essential civil and political freedoms like the freedom of expression, and economic and social freedoms like the freedom to share in the scientific advancements of society, the most blatant violations of human rights caused by intellectual property protection occur in the fields of nutrition, healthcare, and culture.[33] Of these essential entitlements, the rights to food and health are made even more significant by their relationship to the most fundamental of all human rights: the right to life.

A. Intellectual Property Protection and the Right to Culture

The pursuit of traditional knowledge protection through standards of intellectual property is illustrative of how notions of human rights have informed actors on the contemporary international stage. The inclusion of intellectual property protection in global agreements on economic, social, and cultural rights has enabled indigenous populations to speak of a right to protection of their cultural heritage.[34] Though this claim is defensible (and, in some iterations, compelling), it is dangerous as the basis of protection in the realm of intellectual property. If we accept Kal Raustiala鈥檚 assertions that, 鈥淸a]lmost all intellectual property rights are government-granted monopoly rights,鈥漑35] and that, 鈥渆xisting normative theories of intellectual property seek, among other things, to strike a balance between the public domain and private monopolies,鈥漑36] then we must interpret these communities鈥� claims to intellectual property rights in relation to the place of traditional knowledge in the public domain.

Essentially, intellectual property protections like patents serve to legally remove an innovation, created in the medium of previous public knowledge, from the public domain. However, in the case of traditional knowledge concerns, such as agricultural methods and herbal medicine, this removal is necessarily temporary.[37] Thus, the protection of intellectually based components of cultural heritage is not comparable to the more permanent defense that the United Nations Educational, Scientific, and Cultural Organization[ZH1]  provides for historical landmarks. Instead, patents provide a temporary protection for certain information with regards to markets and trade law. The danger here does not lie solely in the theoretical threat it poses to a healthy, creative public domain, but in the aggressive misappropriation of this knowledge at the hands of powerful forces outside the concerned community. Thus, though the argument for the protection of traditional knowledge is born of and framed in ideas of human rights, it runs the risk of taking essential elements of traditional culture out of the public domain and allowing for harmful monopolies akin to those we see in the fields of agriculture and healthcare.

B. Intellectual Property and Violations of the Right To Food

In the developing nations of the world, access to affordable food is hindered by strict protection of genetically modified seeds, [38] and harmed by the act of biopiracy.[39] This pair of issues reveals two different directions from which intellectual property protection in the agricultural sector can affect human rights. The enforcement of patents on genetically modified organisms keeps various seed prices prohibitively high for rural actors in poor nations, preventing access to resilient crop strains that could supplement production in periods of drought. This represents a structural exclusion of an entire class of agricultural actors. The act of biopiracy, on the other hand, is an aggressive act of systematic inclusion, by which multinational corporations steal agricultural practices and products of indigenous populations and exploit them via intellectual property protection (think of the Texas based RiceTec acquiring a patent on a traditionally Indian strain of Basmati rice).[40] Both of these practices have attracted criticism from non-governmental organizations and members of developing communities, but the legal efforts to prevent them are almost always overcome by the robust international system of intellectual property protection. This tide may be changing, however, as the United Nations Special Rapporteur on the right to food recently identified the application of intellectual property protection to agricultural products as a significant threat to the right to food, especially in developing countries.[41]

C. Intellectual Property Protection and the Right to Health

The harmful effect of strict patents on life-saving pharmaceuticals is the most visible structural violence perpetrated by the international intellectual property system. Even those not informed in the particulars of patent law can see the injustice in allowing millions of preventable deaths in the name of protecting massive pharmaceutical companies. The clear and offensive moral implications of this particular strain of intellectual property protection have led multilateral organizations to approve of relaxation in the case of essential medicines.[42] Both the United Nations Special Rapporteur on the right to health and the United Nations Special Rapporteur in the field of cultural rights have alerted the international community to the tensions between exclusive production and essential public access.[43] Additionally, the Global Commission on HIV and the Law has called upon the United Nations to develop a special intellectual property regime to regulate the protection of medicines in a way that protects human rights.[44]

The ability of patent-holding corporations to demand high prices for protected innovations has created avoidable public health crises around the world, and the current work towards improving this situation is challenged by agreements that aim to strengthen rather than relax international intellectual property protections. While pharmaceutical patent protection creates the most significant threats to fundamental human rights, it has also been the site of some of the most promising ideas for intellectual property reform.[45] The following section will explore alternative approaches to intellectual property protection that could expand access to technology and ensure the enjoyment of all human rights.

IV. Recommendations

The impact of increasing ideological contact between intellectual property and other human rights has become an important issue for contemporary intellectual property theorists. Laurence Helfer posits three potential paths this emerging partnership may take, based on three different interpretations of intellectual property by actors concerned with human rights: if protection of intellectual property is a legitimate human right, then rights-holders will seek to expand their claims to protection; if intellectual property protections are obstructive to a pursuit of universal rights, then rights advocates will seek to contain or limit such regimes in an effort to promote human rights; finally, if protection of intellectual property is seen to have instrumental potential with respect to other rights, it may be employed by policymakers as a means to a rights-oriented end.[46] Raustiala offers a more cautious image for the future, with rampant potential for an already vociferous intellectual property agenda to abuse human rights language in an effort to increase its regulatory power. Raustialia and Munzer discuss this potential in reference to traditional knowledge, an increasingly visible candidate for incorporation into intellectual property structures with critical implications for human rights.[47]

While conception of a system of intellectual property protection that is in complete harmony with other fundamental human rights requires a high level of intellectual flexibility, it is virtually impossible to conceive of intellectual property protection (especially in areas of agricultural and pharmaceutical innovation) assisting an agenda of distributive justice. For this reason, much of the debate surrounding intellectual property and social justice calls for the selective non-application of restrictions based on demonstrated humanitarian need.

This pursuit has been institutionalized in various exceptions to international trade regimes (especially in the case of treatment for epidemics),[48] and continues in the area of biopatents, where advocates seek the relaxation of laws restricting access to genetically-modified organisms that could help in famine-relief. Other proposed solutions involve the development of distributive commons where essential research products in biotechnology and similar fields would be made available to the global public, while other aspects of intellectual property protection remain in place. Finally, some of the most provocative re-interpretations of the current system, voiced by actors in both developed and developing nations, call for bypassing intellectual property protections altogether in favor of a more equitable distribution of and access to vital technologies.

A. Prioritizing Rights through Exceptions

One of the most appealing approaches to intellectual property reform is to work within current norms to carve out exceptions for life-saving or life-improving technologies that are currently protected by stringent patent laws. At a domestic level, this can include judicial and administrative procedures that allow the citizens of a particular nation to request exclusions and exemptions from intellectual property protection when such protection comes into conflict with the enjoyment of human rights. This solution is consistent with the United Nation鈥檚 statement that, 鈥淪tates have a positive obligation to provide for a robust and flexible system of patent exclusions, exceptions, and flexibilities,鈥� in order to safeguard the human rights of citizens. At the international level, states that are negotiating agreements within and outside of the World Trade Organization can draft provisions that exempt developing nations from complying with strict patent protections, such as those found in the Trade Related Aspects of Intellectual Property.

B. Leveraging Public Funding and Creating Distributive Commons

To ensure greater access to life-saving innovations that were developed through federally funded research, government agencies can condition research support on the non-exclusive licensing of resulting products. For example, if the National Institutes of Health provide money for biotechnology research that produces a breakthrough cancer treatment, the government can require that the treatment be excluded from patent protection.[49] Similar approaches could be used in the field of agriculture, with the goal of securing public access to technologies that were developed using public money. Although this approach would not result in cost-free access, it would allow multiple organizations to develop competing products based on open-source technology, breaking the current monopolies that artificially inflate the prices of life-saving drugs for HIV/AIDS and cancer.

Intellectual property scholar James Love proposes a similar approach at the global level known as the Medical Research and Development Treaty.[50] This treaty would provide a mechanism through which wealthier nations would fund research for essential medicines to combat epidemics. Love suggests using development capital to support privately managed research in order to liberate life-saving health innovations from the cycle of patent protection.[51] This and similar approaches seek to ensure that protection of intellectual property does not prolong humanitarian crises in the name of market values. On their own, however, these models do not provide a sufficient solution to the conflicts between intellectual property protection and the enjoyment of human rights, as has been recognized by the UN.[52]

C. Seizing Innovations for the Common Good

Finally, national governments can actively prioritize the rights to health and food, as well as other fundamental human rights, over intellectual property rights by seizing the patented technology and placing it in the commons. This may seem like an unorthodox solution, similar to the land reform policies adopted by some revolutionary governments, but it is better understood as an intellectual property analogue of eminent domain takings. For example, if the government decides that it is necessary for the public good to provide unhindered access to certain pharmaceutical or agricultural innovations, it could 鈥渂uy out鈥� the patent and create a commonly available product using the previously-patented technology.

Ultimately, all three of the approaches discussed in this paper can work jointly, with particular solutions being deployed based on a situational assessment that takes into account the severity of the human rights deprivation and the likelihood that alternative approaches will sustainably improve the condition of impacted individuals.

V. Conclusion

While the conventional approach to human rights holds that they are indivisible and mutually reinforcing, the situations described above display material conflicts that occur within the current system of intellectual property protection. Because international intellectual property protection has been developed within neoliberal institutions like the WTO, it has a global tendency to reinforce the hegemonic position of those nations who industrialized early at the expense of developing countries. Additionally, within countries like the United States, instruments for intellectual property protection have been used to reassert privilege and perpetuate structural violence by robbing communities of color of their access to cultural products like music and art.

The interaction between international intellectual property protection and the protection of other human rights is not a recent phenomenon, as seen in the UDHR and the ICESCR. Their institutionalized inclusion, however, has not thus far been reciprocal; despite reference to moral and material rights relating to authorship and innovation in canonical human rights documents, modern agreements on intellectual property are strikingly devoid of human rights language.[53]  Though human rights and intellectual property have philosophically distinct origins, both have become embodied in expansive international legal regimes with increasing ideological and institutional density. The widening of these once distinct policy spaces has led to overlap and confrontation in recent years, with a variety of possible outcomes.

The notion that there ought to be legal protection for intellectual innovations contains many assumptions about the nature of imagination, invention, and the nature of social progress. That ideas for art and technology should be termed intellectual property reveals a fundamental supposition that these creations are to be understood primarily in relation to a system of private ownership. That such a system of property is desirable, to the end that society鈥檚 institutions should protect it, is the core assumption of modern, 鈥渨estern,鈥� liberalism that dates back to John Locke.[54] In relation to human rights, two strains of intellectual property thought have become increasingly prevalent: the first deals with the integration/mutual incorporation of human rights and intellectual property thought, while the second explores the possibilities of intellectual property as a mechanism of social justice.

As the leading industrialized nations of the world negotiate new trade instruments, issues of social equity must be elevated to the level that material profit-taking has traditionally occupied. The intellectual property protection of the future must protect fundamental human rights by ensuring access to life-saving and life-improving technologies, while continuing to respect the material and moral interests of the individuals behind these vital innovations.

* J.D., 糖心Vlog传媒 Little Rock, William H. Bowen School of Law, May 2018; Master of Public Service, Clinton School of Public Service, May 2018.

[1] G.A. Res. 217 (III) A art. 27(2), Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR].
[2] International Covenant on Economic, Social and Cultural Rights, art. 15(1)(C), Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3. [hereinafter ICESCR].
[3] See e.g., UDHR, supra note 1, at art. 27(1); ICESCR, supra note 2, at art. 15(1)(A),(B).
[4] K.J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, 16 Am. U. J. Gender Soc. Policy & L. 365, 366 (2008).
[5]  Peter K. Yu, Ten Common Questions About Intellectual Property and Human Rights, 23 Ga. St. U. L. Rev. 709, 719 (2007).
[6] Id. at 745; See also, Chidi Oguamanam, Indigenous Peoples’ Rights at the Intersection of Human Rights and Intellectual Property Rights, 18 Marq. Intell. Prop. L. Rev. 261, 265 (2014) (鈥淸A]t no time has the empirical importance of the relationship between [human rights] and [intellectual property rights] been more palpable than the period beginning in the mid-1990s, and symbolized by the coming into effect of the Trade-Related Agreement on Intellectual Property Rights . . .鈥�)
[7] Yu, supra note 5, at 719.
[8] UDHR, supra note 1, at art. 27(2); ICESCR, supra note 2, at art. 15(1)(c).
[9] In broad terms, this debate pits 鈥渇irst generation鈥� civil and political rights, which are interpreted to have their origin in eighteenth century liberal philosophy, against 鈥渟econd generation鈥� economic and social rights, which are affiliated more with nineteenth and twentieth century socialism. Peter K. Yu, Reconceptualizing Intellectual Property Interests in A Human Rights Framework, 40 U. CAL. DAVIS L. REV. 1039, 1074, 1149 (2007).
[10] U.N. Econ. & Soc. Council, Comm. on Econ., Soc. & Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Article 15, Paragraph 1(c), of the Covenant), U.N. Doc. E/C.12/GC/17 (Jan. 12, 2006), available at http://www.refworld.org/docid/441543594.html
[11] Yu, supra note 5, at 710.
[12] Id.
[13] World Intellectual Property Organization -A Brief History, World Intellectual Property Organization , http://www.wipo.int/about-wipo/en/history.html (last visited March 12, 2016).
[14] Id.; See also, Linda M. Lee, Note, The Global Harmony Ouroboros: World Intellectual Property Organization ‘s Mission Statement and Its Futile Role in an Economic Legal System, 67 Rutgers U.L. Rev. 1591, 1597 (2015) (鈥淭he signatory nations embarked on an urgent mission to 鈥渉armonize鈥� intellectual property laws on a global scale to facilitate trade and protect the works of its own nationals.鈥�).

[15] World Intellectual Property Organization -A Brief History, supra note 13.
[16] Debora J. Halbert, The World Intellectual Property Organization: Past, Present and Future, 54 J. Copyright Socy. U.S.A. 253, 259 (2007). This ambition is reflected in the choice of the word 鈥渨orld鈥� rather than 鈥渋nternational鈥� to describe the organization, implying a more universal scope for intellectual property. Id.

[17] UDHR at art. 27.
[18] Yu, supra note 5, at 714.
[19] Paul Torremans, Copyright and Human Rights: Freedom of Expression, Intellectual Property, Privacy 6, (2004).
[20] ICESCR, supra note 2, at art. 15.
[21] Id.
[22] Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231.
[23]  Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda 42, (2007).
[24] Rep. of the Special Rapporteur in the field of cultural rights, 露 27, U.N. Doc. A/70/279, (2015) [hereinafter 鈥淪pecial Rapporteur鈥漖. Speaking of intellectual property practices that threaten human rights, the United Nations鈥� Special Rapporteur in the field of cultural rights explains, 鈥淸o]f concern is the patenting of second or third (etcetera) uses of products, in particular medicines, and more generally the practice of ever-greening, which, through minor or artificial improvements, extends the life of patents beyond the time limit of 20 years.鈥� Id.

[26] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,1869 U.N.T.S. 299, 33 I.L.M. 1197.
[27] Charles R. McManis, Teaching Current Trends and Future Developments in Intellectual Property, 52 St. Louis U. L.J. 855, 856 (2008).
[28] Id.
[29] David Hulme, Global Poverty: How Global Governance is Failing the Poor 155, (2010).
[30] Essential drugs include treatments for 鈥渁cute respiratory infections, HIV/AIDS, malaria, diarrhoeal diseases, tuberculosis and the complications of measles.鈥� World Health Organization [WHO], WHO Medicines Strategy: Framework for Action in Essential Drugs and Medicines Policy, at 1, WHO/EDM/2000.1 (2000), http://apps.who.int/medicinedocs/en/d/Jwhozip16e/ One such relaxation occurred through the World Trade Organization鈥檚 2003 鈥淢otta text鈥� agreement, which aimed to 鈥減rovide cheap medicines to the poor people.鈥� European Union [EU], Background info on the TRIPs Health deal, Trade Websites: European Commission, trade.ec.europa.eu/doclib/html/113654.htm (last visited May 11, 2016).
[31] In fact, adjustments made to facilitate importation of generic drugs may have increased barriers to access for essential medicines by imposing more burdensome requirements for monitoring licensing exceptions. James Thuo Gathii, The High Stakes of WTO Reform, 104 Mich. L. Rev. 1361, 1368 (2006).
[32] UDHR, supra note 1, at art. 27(2); ICESCR, supra note 2, at art. 15(1)(c).
[33] See Yu, supra note 5. Yu describes the difference in severity between restrictions on access to healthcare and restrictions on access to culture as, 鈥渢he difference between dying now and dying slowly later.鈥� Id.
[34] Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37, 40 (2009).
[35] Id.
[36] Id. at 41.
[37] As explained in Raustiala鈥檚 statement, 鈥渁ll patents and copyrights eventually end, and the protected creation enters the public domain. Current patent and copyright law generally treat traditional knowledge as if it were already in the public domain; proponents of traditional knowledge rights generally seek to take it out of the public domain, and to do so forever.鈥� Id. at 53.
[38] Sebastian Haunss & Kenneth C. Shadlen, Politics of Intellectual Property: Contestation Over the Ownership, Use, and Control of Knowledge and Information, (2009).
[39] Biopiracy is, 鈥渢he 鈥榰nauthorized and uncompensated expropriation of traditional knowledge and resources.鈥欌�� Michael Woods, Food for Thought: The Biopiracy of Jasmine and Basmati Rice, 13 Alb. L.J. Sci. & Tech. 123, 134 (2002)

[40] Id. at 138.
[41] Special Rapporteur, supra note 24, at 露 52.
[42] See, e.g., WHO, supra note 30.
[43] Special Rapporteur, supra note 24, at 露 51.
[44] Id.
[45] See James Love, Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical, 40 UC Davis L. Rev. 679, 696-705 (2007).
[46] Laurence R. Helfer, Toward A Human Rights Framework for Intellectual Property, 40 U. Cal. Davis L. Rev. 971, 979 (2007).
[47] Munzer & Raustiala, supra note 35, at 40.
[48] Frank Pasquale, Access to Medicine in an Era of Fractal Inequality, 19 Annals Health L. 269, 308 (2010) (鈥淚nternationally, some intellectual property laws governing pharmaceuticals grant poor countries the right to compulsorily license lifesaving drugs in times of emergency.鈥�).

[49] See Peter Lee, Toward A Distributive Commons in Patent Law, 2009 Wis. L. Rev. 917, 1008 (2009). Peter Lee also proposes using the NIH to 鈥渆nhance access to federally funded medicines in low-income countries.鈥� Id.
[50] See Love, supra note 32, at 696-705.
[51] Id.
[52] See Special Rapporteur, supra note 24, at 露 103 (鈥渁lternative policies for incentivizing technological development are important, but remain too scarce to meet human rights objectives, including the right to health.鈥�).

[53] Helfer, supra note 47, at 979.

[54] See Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 288, 295鈥�300 (1988). Hughes suggests that the justification for ascribing ownership of intellectual property can be linked to the 鈥淟ockean 鈥榣abor theory,鈥� which informed our Constitution鈥檚 vision of property.鈥� Id. at 288.

[ZH1]UNESCO

The post Patently Unfair: The Tensions Between Human Rights and Intellectual Property Protection appeared first on The Arkansas Journal of Social Change and Public Service.

by Caitlin Campbell*

鈥淔or the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.鈥�

–       Justice Potter Stewart[1]

Introduction

What phone numbers have you dialed in the past 72 hours? How often  do you send text messages to an out-of-state phone number? Did you drive to your doctor鈥檚 office yesterday? How many times have you driven to a fast food restaurant in the past month? Have you visited any of your friends鈥� or family members鈥� houses recently? Have you stayed overnight somewhere other than your home during the past 127 days? These questions may seem like invasions of privacy. Reasonable individuals do not expect strangers to inquire into such details of their lives. Reasonable individuals certainly do not expect the government to have access to historical caches of this data tracked over months of their lives. However, most individuals are unaware that the government may obtain and review any of this information about anyone, without a warrant, and without even probable cause to suspect that a crime has been committed.[2] Under the Stored Communications Act, courts may issue orders authorizing governmental entities to require electronic communication service providers to disclose customer communications or records when the governmental entity can show that it has 鈥渞easonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.鈥漑3] By allowing the government to compel cell service providers to turn over this historical cell site location information, the Stored Communications Act empowers the government to search through months鈥� worth of location information, revealing intimate details of one鈥檚 associations and patterns of movement without requiring a warrant or a showing of probable cause.[4]

The Fourth Amendment to the United States Constitution provides that 鈥淸t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.鈥漑5] Generally, a search is considered to be reasonable if a law enforcement officer conducted the search after obtaining a warrant that was based on probable cause that a crime was afoot, was issued by a neutral magistrate, and particularly stated the places or people to be searched and the things or persons to be seized.[6] Over time, this warrant clause in the Fourth Amendment has been demoted from a requirement for reasonableness to a mere 鈥渢ouchstone鈥� of reasonableness.[7] Additionally, courts have carved out many exceptions to the warrant requirement and Fourth Amendment protections. The United States Supreme Court has articulated the third-party doctrine, which states that an individual loses any expectation of privacy in information that he or she voluntarily turns over to a third party.[8] The rationale behind this doctrine is that government intrusion into information conveyed to a third party does not even qualify as a search and therefore is not subject to any Fourth Amendment protection.[9] The third-party doctrine also justifies the provisions of the Stored Communications Act that allow the government to compel electronic communications service providers to share stored electronic data in absence of a warrant.[10]

This paper will provide an overview of the existing third-party doctrine and examine the key cases in which the United States Supreme Court developed the doctrine. Section I will review the origin and early development of the third-party doctrine. Section II will acknowledge cases in which the third-party doctrine has played a useful, logical, and valid role in seeking truth and justice. To highlight the disagreement among courts over how the third-party doctrine should apply, Section III will consider a recent case in which use of the third-party doctrine to obtain cell site location information seems unfairly invasive. Section III will also examine some compelling arguments from dissenting judges and justices in cases applying the third-party doctrine. Section IV will look critically at United States v. Jones, paying particular attention to the question Justice Scalia left open regarding surveillance through electronic means and diving deep into Justice Sotomayor鈥檚 concurrence to speculate as to how her opinion may prove to be persuasive in shaping new Supreme Court doctrine as society鈥檚 expectation of privacy in electronic data grows.[11] Considering Justice Sotomayor鈥檚 stated view, Section V will analyze United States v. Carpenter, a case recently argued before the United States Supreme Court, which addresses a warrantless search and seizure of historical cell site location information.[12] To conclude, this paper will consider alternative applications of the third-party doctrine to properly account for society鈥檚 modern expectation of privacy in cell phone data and will propose a new rule requiring the government to obtain a warrant based on probable cause before accessing any  historical cell site location information.

Section I

To understand the origin of the third-party doctrine, one must go back to the 1967 Katz v. United States decision in which the Court shifted its definition of a search within the meaning of the Fourth Amendment from purely a notion of trespass to one of a reasonable expectation of privacy.[13] In that case, the Court held that a government wiretap of a public phone booth qualified as a search because it violated the defendant鈥檚 reasonable expectation of privacy.[14] The rule that developed out of Katz is two-pronged: the individual who was searched must have exhibited a subjective expectation of privacy, and society must be prepared to recognize that expectation as reasonable.[15] This test is the indirect foundation of the third-party doctrine.

Articulating the Third-Party Doctrine

Two seminal cases solidified the third-party doctrine as a Supreme Court-authorized exception to Fourth Amendment protections.[16] In United States v. Miller, the Court held that an individual had no legitimate expectation of privacy in bank records kept in accordance with the Bank Secrecy Act.[17] Even though the individual may have believed that the bank would hold these records in confidence or, at most, only share them for limited purposes, this did not constitute an expectation of privacy that would prohibit the government from obtaining the financial records from the third-party bank.[18] Because Miller had disclosed his financial transactions to his bank, the Court held that he had no privacy interest in anything that third-party institution chose to do with its records of those transactions.[19] In Smith v. Maryland, the Court held that installing a pen register to collect the phone numbers dialed from an individual鈥檚 phone was not a search within the meaning of the Fourth Amendment, and therefore no warrant was required to collect those numbers, since the data containing those numbers had been turned over to the phone company, a third party.[20]

Further Defining Expectations of Privacy

After Katz v. United States established the expectation-of-privacy test for assessing the reasonableness of searches,[21] the Court began to examine the warrantless use of technology that enhanced law enforcement鈥檚 surveillance capabilities. Two cases in particular evaluated the constitutionality of warrantless location tracking using beepers.[22]

In United States v. Knotts, the Court followed Fourth Amendment jurisprudence in holding that there is a lower expectation of privacy in the movements of a vehicle on public streets.[23] In that case, law enforcement officers cooperated with a seller of chloroform to place a beeper inside a chemical container to be sold to an individual of interest.[24] Using the signal from the beeper inside the container and maintaining visual surveillance of the individual鈥檚 vehicle, law enforcement officers tracked the chemicals and the individual to a remote cabin the woods.[25] The officers used this information to obtain a search warrant for the cabin, where they discovered a drug manufacturing operation.[26] Knotts argued that since the monitoring of the beeper鈥檚 location was warrantless, all evidence based on that monitoring should be suppressed.[27] Because the government did not use the tracking information from the beeper to ascertain anything that would not have been available through visual surveillance of the suspect from lawful vantage points, the Court held that the use of the beeper constituted 鈥渘either a 鈥榮earch鈥� nor a 鈥榮eizure鈥� within the contemplation of the Fourth Amendment.鈥漑28] The Court specifically pointed out that one has no expectation that his movements on public highways will not be tracked without consent.[29] Knotts anticipated the danger such governmental power could pose on liberty and argued that allowing this type of tracking could lead to 鈥渢wenty-four hour surveillance of any citizen of this country.鈥漑30] The Court did not recognize a dangerous abuse of power in Knotts, but it did warn 鈥淸i]f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.鈥漑31]

In United States v. Karo, the Court held that there was no violation of Fourth Amendment rights when the government installed a beeper into a can of ether to be sold by a government informant to suspects.[32] While the Court applied the Knotts precedent to determine that there is no reasonable expectation of privacy in one鈥檚 movements on public thoroughfares, it held that warrantless monitoring of a beeper that was within a home to obtain information not observable from a lawful vantage point outside the home violated the Fourth Amendment rights of individuals with privacy interests in the home.[33]

One must note that although the two beeper cases help to define reasonable expectations of privacy, both Knotts and Karo involve surveillance actions taken by the government without the aid of third parties. However, these cases lay the groundwork for cases in which the government used technology to enhance surveillance capabilities.[34]

Expectations of Privacy and Surveillance Technology

As surveillance technology advanced beyond beeper trackers, courts had to address Fourth Amendment searches using cell phones and global positioning systems.[35] In Riley v. California, the court addressed whether law enforcement officers could search the contents of a recent arrestee鈥檚 cell phone under the search-incident-to-arrest exception to the warrant requirement.[36] The logic behind the search-incident-to-arrest exception was that individuals who have been arrested have a lessened expectation of privacy.[37] That idea, coupled with the government鈥檚 interests in protecting officers鈥� safety and preventing the destruction of evidence led to this exception that allowed law enforcement officers to search containers found on a recent arrestee to check for weapons or evidence of the crime of arrest.[38] Because neither of the interests justifying a warrantless search-incident-to-arrest would be served by a warrantless search of the contents of Riley鈥檚 cell phone, the Court held that the contents of Riley鈥檚 cell phone were protected by a Fourth Amendment expectation of privacy, and law enforcement officers needed a warrant based on probable cause to search through the phone.[39]

In 2012, the United States Supreme Court addressed the question of whether the attachment of a global positioning system to an individual鈥檚 vehicle, and subsequent use of that device to monitor and track the vehicle鈥檚 movements on public streets, constituted a search within the meaning of the Fourth Amendment.[40] In Jones, the government did not have a valid warrant to place the GPS tracking device on Mr. Jones鈥檚 vehicle.[41] Once the device was attached, law enforcement officers collected over 2,000 pages of surveillance data listing the movements of that vehicle over twenty-eight days to within an accuracy of 50 to 100 feet.[42] The Court ultimately relied on the older trespass standard to determine that this action was a search because the government had physically occupied private property (the vehicle) for the purpose of obtaining information.[43]

Although both Riley and Jones dealt tangentially with cell phones and location data, neither of those cases addressed the constitutionality of the collection of location data itself through cell phones.[44] Nonetheless, these cases are important pillars of privacy interests, and they leave open some questions about the reasonableness of electronic surveillance.

Section II

In some cases, the use of the third-party doctrine is a useful, logical, and valid constitutional exercise. In an effort to stop crime, it is undoubtedly helpful to law enforcement to be able to access information through third parties without a search warrant in order to establish the requisite probable cause for an arrest warrant. Following Supreme Court jurisprudence, it makes sense that the government can access information in which individuals have no reasonable expectation of privacy. The question then becomes whether an individual has a reasonable expectation of privacy in the information.

In recent years, cell site location information (鈥淐SLI鈥�) has become a frequently used tool for law enforcement officers in placing suspects within the geographic region of a crime scene.[45] Cell site location information is data showing which service towers a cell phone has connected to by broadcasting its location to nearby cell towers.[46] Cell service providers store this data for their own business purposes of evaluating and improving their operations and promoting efficiency.[47] This data is not used for real time tracking, but rather for looking at historic records of location.[48] The Stored Communications Act (鈥淪CA鈥�) provides guidelines for the disclosure of this and other types of communication information by providers of electronic communications to government entities.[49]

Historical Cell Site Location Information Cases

In deeply divided opinions, three U.S. Courts of Appeal have held that there is no right to privacy in cell phone data held by a cell service provider and have applied the third-party doctrine to such data, allowing the government to obtain it without a warrant.[50] Another U.S. Court of Appeal has held that it is up to a federal magistrate to decide whether to require a warrant for government access to data held by a cell service provider.[51]

In 2010, the Court of Appeals for the Third Circuit held that although the burden on the government to obtain a court order compelling production of an individual鈥檚 cell site location information was less than establishing probable cause, it was within the Court鈥檚 discretion to require the government to obtain a warrant before ordering the provider to produce a customer鈥檚 CSLI.[52] In explaining its decision, the Court focused on the compulsory nature of the collection of CSLI, saying that cell phone users do not 鈥渧oluntarily鈥� share their location with cell service providers 鈥渋n any meaningful way.鈥漑53] The Court was also persuaded by the Electronic Frontier Foundation鈥檚 argument that cell phone customers are unlikely to realize that their providers collect and store their CSLI.[54]

Three years later, the Court of Appeals for the Fifth Circuit reached the opposite conclusion, holding that cell phone users 鈥渦nderstand that their service providers record their location information when they use their phones.鈥漑55] The Court looked back to Smith in determining that if landline users understood that the phone companies recorded the numbers they dialed back then, then cell phone users understand that their cell service providers record their cell phone activity at least to the same extent.[56] In that case, the Court disagreed with the Third Circuit and held that a magistrate judge did not have discretion to require a warrant before issuing an order under the Stored Communications Act.[57] The Court also held that the lesser 鈥渟pecific and articulable facts鈥� standard outlined in the SCA to compel cell service providers to produce historical cell site information was not per se unconstitutional as a violation of the Fourth Amendment probable cause standard.[58]

The Court of Appeals for the Eleventh Circuit also applied the third-party doctrine to historical CSLI in United States v. Davis in 2015.[59] In this case, the government introduced CSLI records spanning a 67-day period in an attempt to place Davis in the vicinity of the sites of a string of seven armed robberies over that two-month period.[60] Though Davis challenged the constitutionality of using this information in violation of his Fourth Amendment expectation of privacy, the Court applied Miller and Smith directly and held that Davis had 鈥渘o reasonable expectation of privacy in certain business records owned and maintained by a third-party business.鈥漑61]

In 2016, the Court of Appeals for the Fourth Circuit held that obtaining historical cell site location information from a cell service provider without a warrant did not violate the Fourth Amendment.[62] The Court explained its rationale practically, falling in line with other circuits in holding that individuals have come to expect that cell service providers will 鈥渁t a minimum, route outgoing and incoming calls and text messages.鈥漑63] The Court logically explained that cell phone users exhibit their knowledge that location or proximity to a cell tower matters when they move outside in an attempt to 鈥済et a signal鈥� or warn someone on the line that they may drop the call as they pass through an area with poor service.[64] When this logic is widespread in modern society, it is difficult to refute this argument with claims that cell phone users are unaware that cell service providers collect and use location information in providing their service.

Proponents of continuing to apply the third-party doctrine to historical cell site location information argue that the Supreme Court would undermine or erode decades of precedent if it were to carve out an exception for CSLI held by third-party providers.[65] They point to the need to preserve the third-party doctrine to maximize police efficiency, citing the Knotts opinion, 鈥淸w]e have never equated police efficiency with unconstitutionality, and we decline to do so now.鈥漑66] In order to prevent criminals from using technological advances to circumvent the law, law enforcement officers must be allowed to use technological advances to their advantage in ferreting out crime.[67] Those who wish to keep CSLI accessible to government through the third-party doctrine also suggest that Congress, not the Court, is the better entity to address societal concern about the privacy of CSLI.[68] Congress is better suited to respond to fast-paced and unforeseen technological advances,[69] as it did after Miller by enacting the Right to Financial Privacy Act, which allows banks and other financial institutions to challenge subpoenas and to narrow the scope of government inquiry,[70] and after Smith by enacting the Stored Communications Act, Section 2703(d) of which limits government requests for CSLI.[71]

Section III

In some cases, despite their holdings, applying the third-party doctrine seems to unfairly invade areas of where one would expect privacy.[72] Because the courts that have addressed historical cell site location information have all applied the third-party doctrine and allowed governmental entities to obtain CSLI without a warrant and without a showing of probable cause, there is not an actual circuit split on this issue.[73] However, each of those decisions has been fractured, sparking concurrences,[74] concurrences in judgment,[75] and dissents.[76]

One recent case in the D.C. Circuit set a new boundary on the third-party doctrine as applied to cell phones and CSLI.[77] In this latest Jones case, law enforcement officers used a 鈥淪tingray鈥� device to simulate a cell service provider鈥檚 cell tower, allowing them to locate a cell phone and to intercept calls and texts to and from targeted cell phones.[78] Experts hired by both parties testified that the 鈥淪tingray鈥� device prevents cell phones in its vicinity from connecting to any other innocuous cell tower.[79] The device exploited a weak spot in the security system of a cell phone and coerced the phone to connect with the simulator, divulging information that allowed the government not only to track the phone鈥檚 movement, but also to locate the cell phone user.[80] The Court held that warrantless use of the鈥淪tingray鈥� device invaded Jones鈥檚 reasonable expectation of privacy and was therefore an unconstitutional search in violation of the Fourth Amendment.[81] Although this case did not directly rule that CSLI was protected from the third-party doctrine, it did set a clear boundary of what type of action is beyond the scope of the doctrine.[82] After this case, the government should think twice before trying to run an endgame around the statutory parameters already set for obtaining CSLI. This case clearly turned on the fact that law enforcement officers tried to gather CSLI by simulating a cell tower rather than by going through the simple procedure to request CSLI data from third-party providers鈥� cell towers.

In a concurrence with the Davis opinion, Judge Robin Rosenbaum highlighted a key argument of the dissent and of many who oppose allowing warrantless access to CSLI through the third-party doctrine by pointing out that 鈥淸i]n our time, unless a person is willing to live 鈥榦ff the grid,鈥� it is nearly impossible to avoid disclosing the most personal information to third-party service providers on a constant basis, just to navigate daily life.鈥漑83] This undercuts the assertion that cell phone users knowingly and voluntarily convey their information to third-party service providers. Such conveyance cannot be voluntary if society does not afford the option to forego a device that automatically conveys one鈥檚 sensitive location information. This argument is an extension of Justice Brennan鈥檚 dissent in Miller, in which he noted that economic life in contemporary society necessitated a bank account.[84]

Justice Marshall reiterated this point in Smith, saying, 鈥渦nless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.鈥漑85] Regarding government surveillance through the third-party doctrine, Justice Marshall and Justice Brennan subscribed to the theory that one does not give up all of one鈥檚 privacy interest when disclosing something to one party for a particular purpose.[86] This idea that an individual can maintain some privacy interest even in information conveyed to a third-party appears in other lines of Supreme Court and federal appellate precedent.[87] Most notably, the Court of Appeals for the 6th Circuit held that an individual has a reasonable expectation of privacy in his emails even though they were sent via a third-party Internet service provider and that the government violated his Fourth Amendment rights by failing to obtain a warrant based on probable cause before compelling the third-party provider to produce the emails.[88] Warshak went so far as to declare that to the extent that the Stored Communications Act allows the government to access emails and their content without a warrant based on probable cause,[89] the SCA is unconstitutional.[90]

Though courts continue to apply the third-party doctrine to personal electronic data, there is confusion and disagreement as to how and when the third-party doctrine should apply to electronic data, especially cell site location information.

Section IV

Where Jones Left Off

The Jones case left open a question about the constitutionality of warrantless electronic surveillance.[91] In the majority opinion, Justice Scalia wrote, 鈥淚t may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.鈥漑92]

As noted above, in this case, the Court held that installing a global positioning device on a target鈥檚 vehicle and using that device to monitor the vehicle鈥檚 movements was a search under the Fourth Amendment and an unconstitutional one, since there was no warrant.[93] Although all nine justices agreed on this holding, they were split when it came to the reasoning that justified the holding.[94] Four justices decided the issue solely on the basis of trespass.[95] Four other justices concurred in judgment, but decided the issue solely on the basis of the reasonable expectation of privacy test formulated in the Katz opinion.[96] One justice, Justice Sotomayor, joined the majority鈥檚 opinion, deciding the case on trespass because she believed that it was the narrowest grounds on which the case could be decided.[97] However, in her concurrence, she conceded that she believed the Jones fact pattern also constituted a privacy violation, as the other four minority justices pointed out.[98]

Justice Sotomayor suggested that the Court may need to reconsider the third-party doctrine in light of new and changing technology. She wrote:

It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.[99]

She went one to express concern that continuous location information like that collected in Jones can give the government a precise and comprehensive record of an individual鈥檚 movements, which provides enough detail to allow for speculation about personal associations of all types.[100] Having voiced this opinion, Justice Sotomayor may prove to be a decisive player in shaping new Supreme Court doctrine as society鈥檚 expectation of privacy in personal electronic data grows. If her hesitation in Jones is indication that she is skeptical of the reasonableness of tracking using a tracking technology limited by the government鈥檚 ability to physically place it on a vehicle, that skepticism is likely magnified in cases in which the government collects cell site location information without any physical trespass.

Section V

In 2017, the United States Supreme Court granted certiorari to a case from the Sixth Circuit, United States v. Carpenter, to address this divisive issue of collecting cell site location information without a warrant.[101] The Court heard oral arguments in this case on November 29, 2017.[102] In Carpenter, one of four men arrested following a string of armed robberies confessed to the crimes and gave FBI agents the cell phone numbers of the other participants.[103] Using those phone numbers, the FBI obtained 127 days鈥� worth of cell site location information for Timothy Carpenter鈥檚 cell phone, showing that he had used his cell phone within a half-mile to two mile radius of several of the robberies at the times they occured.[104] Carpenter challenged the government鈥檚 use of the business records of his cell service provider as violating his Fourth Amendment rights.[105] The Court of Appeals for the Sixth Circuit focused on the distinction in Fourth Amendment cases between content of a communication and the information necessary to convey the communication.[106] It held that the content of a cellular communication is protected under the Fourth Amendment, but information that a service provider uses to route that communication is not protected.[107]

Before the United States Supreme Court, Carpenter has distinguished his case from both Riley and Jones in an attempt to limit the third-party doctrine鈥檚 application to cell site location information.[108] While Riley dealt with protected content on a cell phone,[109] Carpenter involves what has traditionally been known as incidental transmittal data.[110] To bolster his claim that CSLI should be protected, Carpenter argues that in light of modern technology, 鈥渃ontent as a category is both under-inclusive and unadministrable.鈥漑111] Drawing from the concurrences in Jones, he points out that although the information at hand is not the content of communication, location over time in public has been protected as sensitive and revealing personal information.[112]

Carpenter鈥檚 strongest arguments emphasize the privacy interest at play and ask the justices to evaluate how reasonable an expectation of privacy in location tracked through one鈥檚 cell phone is in society today.[113] Of course the government has argued that the Court continue to apply the third-party doctrine as a standard society has come to understand – that one forfeits any privacy interest in things communicated to a third party.[114] One of Carpenter鈥檚 stronger rebuttals is that this cell site location information was not voluntarily communicated to the service provider in any meaningful way, much like in Miller.[115] By stressing the magnitude of private information that could be available for government surveillance without a warrant and by emphasizing the compulsory manner in which cell site location information is collected, Carpenter might persuade five justices that CSLI should be protected by the Fourth Amendment and no be accessible through the third-party doctrine.

Conclusion

In the Carpenter case, the Court has an opportunity to build on the protection of location data established in Riley and Jones.[116] Some scholars have predicted that the Court will cling to the reasonable-expectation-of-privacy line of precedent, resulting in a ruling that, like Robinson,[117] will need subsequent realignment and interpretation.[118] The Carpenter case itself results from a plea for the Court to determine whether it makes sense to apply an old doctrine to new and unforeseen technology. However, one scholar proposes a straightforward method of analysis.[119] If the Court were to break this analysis down into simple steps and apply the Fourth Amendment directly, it would have to determine that this search of digital data is the equivalent of a search of papers within the meaning of the Fourth Amendment in that both papers and digital data are commonly used media to store and communicate information.[120] The analysis then turns to whether the search was reasonable. Although courts have created many exceptions to the warrant requirement for reasonableness, 鈥渋t is a cardinal rule that . . . law enforcement . . . use search warrants wherever reasonably practicable.鈥漑121] This straightforward analysis would lead the Court to rule that cell site location information is protected by the Fourth Amendment.

Another scholar suggests that in place of the third-party doctrine, there should be a 鈥渉uman eyes鈥� standard, which would negate large scale computer searches through masses of data only for the purposes of the Fourth Amendment.[122] This theory rests on the idea that no search or seizure occurs unless human eyes actually see the communications.[123] Without a search or seizure, Fourth Amendment protections do not apply. However, this proposal accepts that computers may still collect and store massive amounts of personal information about citizens.

In order to avoid unconscionable application of the third-party doctrine, the court needs to reevaluate the doctrine in light of modern technology and provide greater protection for the private information that can be collected unwittingly from cell phones. The Court should rule that obtaining cell site location information requires a search warrant with the standard showing of probable cause. Since cell phones now contain substantial amounts of sensitive personal information, and since many daily activities such as grocery shopping, banking, and navigating now utilize cell phone applications for speed and convenience, it is unlikely that people will become less attached to their cell phones with time. As technology advances, location tracking will undoubtedly become more precise, and thus more powerful in the hands of the government. In order to ensure continued Fourth Amendment protection from unreasonably invasive searches, the Court should require the government to obtain a warrant for CSLI.

There is already a procedure for requesting cell site location information under the Stored Communications Act.[124] A government entity may request CSLI without first notifying the customer if the government can offer 鈥渟pecific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.鈥漑125] This standard is similar to a reasonable suspicion standard, a lesser showing of suspicion than the probable cause requisite for a warrant. Since the Stored Communications Act already requires a standard of suspicion and a formal request for a court order to compel cell service providers to turn over the CSLI, it would be a simple fix to raise that requisite standard of suspicion to probable cause, and require a warrant instead of a request for a court order to compel. This minor change in the statute would provide the protection from unreasonable searches that the Fourth Amendment promises. Critics like Justice Alito may say that Congress is better suited than the Court to adopt new rules in response to technological advances; however, it would be much easier for Congress to create rules to match modern technology if the Court would recognize that the third-party doctrine as applied in Smith no longer makes sense in cases involving communications technology.

*Caitlin Campbell is a 2019 candidate for a Juris Doctor degree from the 糖心Vlog传媒 Little Rock William H. Bowen School of Law and a Master of Public Service degree from the University of Arkansas Clinton School of Public Service.

[1] Katz v. United States, 389 U.S. 347, 352 (1967).
[2] Stored Communications Act, 18 U.S.C. 搂 2703(d) (2017).
[3] Id.
[4] Id.
[5] U.S. Const. amend. IV.
[6] Id. and see, e.g., Andresen v. Maryland, 427 U.S. 463, 492 (1976).
[7] See Katz, 389 U.S. at 360; Riley v. California, 134 S. Ct. 2473 (2014).
[8] See, e.g. United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).
[9] Smith, 442 U.S. 735.
[10] Stored Communications Act, 搂搂 2701 – 2703(d).
[11] United States v. Jones, 565 U.S. 400 (2012).
[12] United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016) (cert. granted 137 S.Ct. 2211, June 5, 2017).
[13] Katz v. United States, 389 U.S. 347 (1967).
[14] Id.
[15] Katz, 389 U.S. at 361 (This two-part test is articulated in Harlan, J.鈥檚 concurrence).
[16] United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).
[17] Miller, 425 U.S. at 442.
[18] Id.
[19] Id.
[20] Smith, 442 U.S. at 746.
[21] Katz, 389 U.S. 347.
[22] United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705 (1984).
[23] United States v. Knotts, 460 U.S. at 281; see Rakas v. Illinois, 439 U.S. 128, 153-54 (1978) (Powell, J., concurring).
[24] Id. at 276.
[25] Id.
[26] Id.
[27] Id. at 279.
[28] Id. at 285.
[29] Id. at 281.
[30] Id. at 283.
[31]  Knotts, 460 U.S. at 284.
[32] Karo, 468 U.S. at 713.
[33] Id. at 714.
[34] See Riley v. California, 134 S.Ct. 2473 (2014); Jones, 565 U.S. 400.
[35] Id.
[36] Riley, 134 S.Ct. at 2485.
[37] Chimel v. California, 395 U.S. 752 (1969).
[38] United States v. Robinson, 414 U.S. 218 (1973).
[39] Riley, 134 S.Ct. at 2485.
[40] United States v. Jones, 565 U.S. at 404.
[41] Id. (The government had applied for the warrant, but the 10-day period in which to execute it had expired, and when officers placed the GPS on the vehicle, it was in Maryland, not Washington, D.C., as the warrant prescribed.)
[42] Id. at 403.
[43] Id. at 411 (Five justices decided the case on the basis of trespass, and four justices felt the expectation of privacy definition of a search was more applicable here. One justice stated that both standards could apply, but chose to side with the majority on the narrower ground of trespass.)
[44] Riley, 134 S.Ct. 2473; Jones, 565 U.S. 400.
[45] Spencer S. Hsu, Court: Warrantless requests to track cellphones, Internet use grew sevenfold in D.C. in three years, THE WASHINGTON POST (July 18, 2017) https://www.washingtonpost.com/local/public-safety/court-warrantless -requests-to-track-cellphones-internet-use-grew-sevenfold-in-dc-in-three-years/2017/07/18/b284ac32-6b36-11e7-9c15-177740635e83_story.html?utm_term=.0d4a43b08636
[46] Eric Lode, Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or Historical Position of Possessor of Phone Under Fourth Amendment, 92 A.L.R. Fed. 2d 1, *2 (2015).
[47] Id.
[48] Id.
[49] Stored Communications Act, 18 U.S.C. 搂搂 2701, et seq. (2017)
[50] United States v. Graham, 824 F.3d 421 (4th Cir. 2016); In re United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) )(cert. Denied 136 S.Ct. 479 (2015).
[51] In re Application of United States for an Order Directing a Provider of Elec. Commun. Serv. to Disclose Records to Gov鈥檛, 620 F.3d 304 (3rd Cir. 2010).
[52] Id. at 315.
[53] Id. at 317.
[54] Id.
[55] Historical Cell Site Data, 724 F.3d at 613.
[56] Id.
[57] Id. at 608.
[58] Id. at 615.
[59] Davis, 785 F.3d 498.
[60] Id. at 501.
[61] Id. at 507.
[62] Graham, 824 F.3d at 424.
[63] Id. at 430.
[64] Id.
[65] David LaBahn, Symposium: A Defense of the Doctrine, SCOTUSBLOG (Aug. 2, 2017), http://www.scotusblog.com/2017/08/symposium-defense-doctrine/
[66] Knotts, 460 U.S. at 284.
[67] See United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012) and Knotts, 460 U.S. at 284.
[68] Jones, 565 U.S. at 429 (Alito, J., concurring in the judgment).
[69] Id.
[70] Financial Right to Privacy Act
[71] 18 U.S.C. 搂 2703(d) (2017).
[72] See, e.g. Graham, 824 F.3d at 441; Davis, 785 F.3d at 521.
[73] See Elec. Commun. Serv. to Disclose Records to Gov鈥檛, 620 F.3d 304; Graham, 824 F.3d 421; Historical Cell Site Data, 724 F.3d 600; Davis, 785 F.3d 498.
[74] Graham, 824 F.3d at 438; Davis, 785 F.3d at 519, 524; Elec. Commun. Serv. to Disclose Records to Gov鈥檛. 620 F.3d at 319.
[75] Graham, 824 F.3d at 441; Davis at 521
[76] Davis, 785 F.3d at 533; Historical Cell Site Data, 724 F.3d at 615.
[77] Jones v. United States, 168 A.3d 703 (D.C. 2017).
[78] Id.
[79] Id. at 709.
[80] Id.
[81] Id. at 713.
[82] Id.
[83] Davis, 785 F.3d at 525.
[84] Miller, 425 U.S. at 451.
[85] Smith, 442 U.S. at 748 (dissent joined by Brennan, J.).
[86] Id.
[87] See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010); Ferguson v. City of Charleston, 532 U.S. 67 (2001) (holding that a hospital patient retains a reasonable expectation of privacy in diagnostic tests and can expect that the test results will not be shared with nonmedical personnel without patient鈥檚 consent); Bond v. United States, 529 U.S. 334 (2000) (holding that a bus passenger has a protected privacy interest in luggage even though he might expect that a bus employee might handle it in a non-exploratory manner).
[88] Warshak, 631 F.3d at 288.
[89] Stored Communications Act, 18 U.S.C. 搂 2703(b) (2017) (allowing governmental entities to require a provider of remote computing services to disclose the contents of wire or electronic communications without a warrant or a showing of probable cause).
[90] Warshak, 631 F.3d at 288.
[91] Id. at 412.
[92] Id.
[93] United States v. Jones, 565 U.S. at 404.
[94] Id.
[95] Id. at 411.
[96] Id. at 418.
[97] Id. at 413-14.
[98] Id. at 414
[99] Id. at 417.
[100] Id. at 417.
[101] United States v Carpenter, 819 F.3d 880 (6th Cir. 2016) (cert. granted 137 S.Ct. 2211, June 5, 2017).
[102] All speculation regarding how the Court may decide the case is based on pleadings submitted at the time of writing and a transcript of the oral arguments in this case.
[103] Carpenter, 819 F.3d at 884.
[104] Id.
[105] Id.
[106] Carpenter, 819 F.3d at 883-84.
[107] Id.
[108] United States v. Carpenter Oral Arg. 3:22-25, 4:9-13, Nov. 29, 2017.
[109] Riley, 134 S.Ct. 2473.
[110] Carpenter, 819 F.3d 880.
[111] United States v. Carpenter Oral Arg. 24:9-13, Nov. 29, 2017.
[112] Id. at 24:14-18.
[113] Id. at 6:20-25.
[114] Id. at 51:6-12.
[115] Id. at 4:16-24 (citing Miller, 425 U.S. at 442).
[116] Riley, 134 S.Ct. 2473; Jones, 565 U.S. 400.
[117] United States v. Robinson, 414 U.S. 218 (1973) (The Robinson case introduced the 鈥渃ontainer鈥� doctrine, which allows law enforcement officers to search any containers found on an arrestee鈥檚 person for weapons or evidence of the crime of arrest, citing an interest in officer safety. Lower courts applied this doctrine liberally, and the Supreme Court has since had to narrow the doctrine鈥檚 application in United States v. Chadwick, 433 U.S. 1 (1977) and Arizona v. Gant, 556 U.S. 332 (2008). The Court ruled that cell phones were not 鈥渃ontainers鈥� that could be searched under this doctrine in 2014 in Riley.).
[118] See Jim Harper, Symposium: Granular Analysis Versus Doctrine in Carpenter, SCOTUSBLOG (Aug. 1, 2017), http://www.scotusblog.com/2017/08/symposium-granular-analysis-versus-doctrine-carpenter/
[119] Id.
[120] Id.
[121] Chimel v. California, 395 U.S. 752 (1969).
[122] Cindy Cohn, Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt, Electronic Frontier Foundation 126 Yale L.J. F. 107 (2016).
[123] Id.
[124] 18 U.S.C. 搂 2703 (2017).
[125] Id. at 搂 2703(d).

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