2017 Law & Policy Prompt
The anonymity network Tor has made it easy for users to mask their Internet activity from law enforcement. Tor software encrypts and directs user communications through a series of relays, preventing the destination location from knowing the source IP address. This means that when law enforcement discovers illicit online materials--such child pornography or illegal marketplaces--it has a difficult time tracing the people who access them.
One solution to this problem is the NIT (Network Investigative Technique). The NIT is a piece of malware that, when downloaded, retrieves the user’s IP address and sends it to law enforcement. Once law enforcement has control over an illicit site, it can take advantage of undisclosed vulnerabilities in the Tor browser to force anyone who accesses the site to download the NIT software.
The use of the NIT has raised many legal and policy concerns both domestically and internationally. One of the most controversial aspects of the NIT is that it utilizes an undisclosed browser vulnerability to “hack” into suspects’ computers. Defendants have begun to argue that disclosure is required by the Due Process Clause because knowledge of the exploit is essential to a fair defense. Others have argued that disclosure is in the best policy interest of the United States. The government has been adamant that disclosure is unnecessary and would be detrimental to catching dangerous criminals.
Background info on Stringrays:
“Stringrays” are devices that can be used to track cell phones (and in some cases intercept cell phone communications). They work by constantly emitting a signal that mimics that of a cellphone tower. Cell phones continuously monitor for cell tower signals to maintain connectivity. When the phone detects a stingray signal, it responds to it as if it were a normal cell tower.
By intercepting the cell phone signal in this way, the Stringray is able to detect the phone’s location and in some instances pick up other information from the cell phone, including unique information that identifies the phone’s owner.
Stingrays have been used by local and state police officers as part of surveillance operations and other law enforcement activity.
The year is 2050 and the Globex Corporation has recently won a government contract to design and manufacture Nano Antimatter Radioactive Computers (NARCs)—advanced devices that can be used to detect whether an individual is under the influence of drugs. The devices are capable of analyzing a variety of inputs including pupil dilation, gait, and ambient smells, and use them to determine with a very high degree of accuracy whether an individual has recently used an illegal drug. The City of Springfield has purchased hundreds of NARCs and has placed them all around town. They are programmed to alert a switchboard at the police headquarters whenever they detect drug use.
Otto Mann, a resident of Springfield, smokes marijuana before leaving for his job as an elementary school bus driver. Unbeknownst to him, the Springfield Police Department installed a NARC on a telephone pole on his block. The NARC detected that he had smoked marijuana recently and notified the officers at police headquarters. Mr. Mann was promptly picked up by Chief Wiggum of the Springfield Police Department and is now on trial.
Mr. Mann’s lawyer, Lionel Hutz, has demanded that the government produce full technical specifications for the NARCs, including the exact factors and other algorithmic details used to determine whether the subject has consumed drugs. You are a policy advisor for the government, who must decide whether or not the government’s lawyers should release these technical details.
To help you with your research, the Law & Policy Team has provided relevant background materials on similarly controversial technologies and recent legal developments. Participants are not required to use any or all of the provided materials, but successful papers will root their arguments in the ongoing legal and political debates surrounding existing technologies, such as NITs and stingrays. The winning paper will make the best argument for why the government should or should not disclose the technical details of the NARC device, and while papers should make use of recent legal developments to inform their arguments, participants are not expected to submit legal briefs or just describe the current state of the law.
To better focus your analysis on the due process issues, please assume that there were no Fourth Amendment violations involved, and that no other rules of evidence would automatically bar submission of the government’s discovery.
All papers must be submitted in PDF format, double-spaced, with 12-pt Times New Roman font, 1 inch margins, and no more than 3000 words. The word count excludes footnotes and endnotes. Proper (blue booked) legal citations are NOT required.