Notes

The botnet, a group of computers infected with malicious software and remotely controlled without their owners’ knowledge, is a ubiquitous tool of cybercrime. Law enforcement can take over botnets, typically by seizing their central “command and control” servers. They can then manipulate the malware installed on private computers to shut the botnet down. This Note examines the Fourth Amendment implications of the government’s use of remote control of malware on private computers to neutralize botnets. It finds that the government could take more intrusive action on infected computers than it has previously done without performing a search or seizure under the Fourth Amendment. Most significantly, remotely finding and removing malware on infected computers does not necessarily trigger Fourth Amendment protections. Computer owners have no possessory interest in malware, so modifying or removing it does not constitute a seizure. Additionally, even if the government’s efforts cause some harm to private computers, this will rarely produce a seizure under the Fourth Amendment because any interference with the computer will be unintentional. Remotely executing commands on infected computers does not constitute a search under the Fourth Amendment unless information is returned to law enforcement.

There are important uses for trusts that are essentially unavailable in China. Family trusts and larger-scale trusts run by private parties for the public interest are extremely rare and face a difficult regulatory environment. While China’s Trust Law itself recognizes a distinction between “civil” and “commercial” trusts, the regulations governing trust businesses recognize no such distinction. These regulations impose conditions that make small-scale family trusts and collective civil trusts almost impossible. It is unclear whether these regulations apply to all trusts, but even if they do not, the narrow view of trusts that they promote limits the usefulness of trusts in other areas. However, these types of trusts could be accommodated by easy reforms revising the regulatory and legal framework to permit and facilitate family and public interest trusts.

Unchecked Discretion and Undesirable Consequences

The Obama Administration has historically expanded the availability of deferred action, which provides a reprieve from the threat of deportation and work authorization to certain undocumented immigrants, through the creation of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These programs, as well as legislative efforts to provide a path to citizenship for undocumented immigrants, increasingly seek to exclude suspected gang members. In doing so, they make gang databases managed by state and local law enforcement increasingly relevant to eligibility decisions. These databases, however, lack the procedural safeguards necessary to curb police discretion, which can allow racial stereotypes and biases to influence decisionmaking and lead to the disproportionate inclusion of people of color. This Note argues that the policy rationales underlying procedural due process highlight the inadequacies of these databases as tools for immigration adjudicators. By using them to determine eligibility for immigration benefits, the Department of Homeland Security (DHS) imports the racial bias inherent in the criminal justice system to the immigration system. In order to avoid this result and increase both fairness and accuracy, DHS should bar adjudicators from relying on gang databases.

In Search of Just and Proportional Sanctions for Buyers of Sex with Trafficking Victims

The U.S. criminal justice system currently lacks a proportional, clear, and effective law targeted at individuals who purchase sex with trafficking victims. These “johns” of trafficking victims (JTVs) historically have remained anonymous and unaccountable. More recently, three unsatisfactory approaches to sanctioning this group have emerged. First, they are sometimes subjected to low-level patronization and solicitation misdemeanors alongside johns of consensual sex workers. Second, they are increasingly prosecuted as traffickers under sex-trafficking legislation. Third, they are occasionally prosecuted as statutory rapists and sex abusers if the victim is a minor. This Note argues that none of these first three approaches are an adequate fit for this population. Treating them simply as johns ignores the seriousness of their offense and does not distinguish prostitution from trafficking. Treating them as traffickers is disproportionate on the other extreme, especially with recent strict liability interpretations of sex-trafficking statutes and mandatory minimums, and furthermore dilutes the term “human trafficking.” Finally, treating them as statutory rapists is underinclusive and ignores the commercial nature of the offense. This Note explores a fourth approach being implemented sporadically on the federal and state levels: prosecuting johns of trafficking victims under legislation explicitly addressing this group. This Note argues that targeted legislation is the most appropriate and fair approach. It advocates modified versions of such legislation, with tailored mens rea standards and flexible penalties correlated to culpability.

A New Framework for Adjudicating Corporate Religious Liberty Claims

Do corporations deserve religious liberty protection? This question came to the forefront in the series of contraception mandate cases, leading to a circuit split and the controversial Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. This Note looks past that debate to the potential effects of business regulation on individuals and develops a framework for considering corporate religious liberty claims that accounts for those individual burdens. Part I provides relevant back- ground information to understand the contraception mandate issue that led to Hobby Lobby. Part II demonstrates that regulatory burdens that fall on secular, for-profit corporations can nonetheless burden their individual owners by putting them to the choice of either disobeying the dictates of their religion or facing adverse financial consequences. Part II continues by showing that nothing in corporate law requires ignoring this burden and points to ambiguities in the Hobby Lobby majority opinion that may prevent courts from properly recognizing and focusing on this important burden. Part III answers the questions left open by the Hobby Lobby majority and suggests a framework for considering which corporations should be able to bring religious liberty claims. This framework is aimed at protecting individuals from the burden of being unable to enjoy the benefits of the corporate form without having to violate their religious beliefs.

Using “Big Data” to Better Analyze Accountable Care Organizations Under the Medicare Shared Savings Program

Accountable Care Organizations (ACOs), a major component of the Affordable Care Act, seek to provide patients with better quality health care at a lower cost and have been praised for their ability to help repair our country’s broken health care system. Despite their potential benefits, however, ACOs also raise significant antitrust concerns—concerns that may pit consumer surplus and total surplus against one another. In an attempt to address these concerns, the Department of Justice and Fair Trade Commission announced that they will use market share screens and rule of reason treatment to evaluate ACOs participating in the Medicare Shared Savings Program. The use of market share screens and rule of reason treatment allows the antitrust agencies to avoid prioritizing either consumer surplus or total surplus in the first instance but leaves open two critical questions: What will the rule of reason treatment afforded to ACOs look like? And how will the antitrust agencies ultimately determine whether ACOs benefit or harm consumers? In order to address these questions, this Note proposes that the antitrust agencies use the “big data” collected under the Affordable Care Act to conduct a structured rule of reason review of ACOs that takes into account both the consumer surplus and total surplus through a burden-shifting framework.

Access Rights and the DMCA’s Anticircumvention Provision

Traditional media companies, such as newspapers, have struggled to adjust their profit models to the Internet economy. Some newspapers have instituted “paywalls,” digital locks that limit access to online articles with varying degrees of logistical and financial success. As paywalls proliferate to protect digital media, methods for circumventing those paywalls develop and propagate just as quickly. The Digital Millennium Copyright Act (DMCA) prohibits circumventing an effective technological means of control that restricts access to a copyrighted work. However, two competing interpretations of the statute have emerged. The more widespread approach, the infringement-nexus interpretation, requires a nexus between circumvention and traditional copyright infringement to prove a violation of the statute. By contrast, the access-right interpretation reads the statute literally as providing a new right of access control to owners of copyrighted works. This Note argues that the access-right interpretation correctly reflects Congress’s intent by recognizing that the right to access a work—not just to copy or distribute it—has real value that deserves protection. However, the DMCA has some inherent problems that prevent it from offering effective, meaningful protection to the right of access. This Note discusses those problems and offers solutions for ensuring more effective protection to this newly recognized and increasingly valuable right.

In an apparent victory for federalism, the Obama Administration has set out a policy of deference to state marijuana regulations, even when state laws conflict with federal prohibition. Critics of this policy have alleged that the executive is unconstitutionally leaving portions of federal law unenforced, effectively legalizing a drug that is still classified as a Schedule 1 narcotic. But in reality, current executive branch guidelines for the exercise of prosecutorial discretion are limited, vague, and largely unenforceable. Instead, the real risk is not that current federal nonenforcement policy will effectively legalize marijuana, but that the policy will fail to induce the reliance necessary for states to serve as effective laboratories of experimentation. This concern can be addressed, to an extent, by requiring that U.S. Attorneys use their enforcement authority in a more formal, transparent, and reliable fashion. However, constitutional limits on executive power mean that deregulation is likely to remain imperfect until a legislative solution is enacted.

In the wake of United States v. Windsor, the IRS determined that a validly married same-sex couple is married for federal tax purposes regardless of their state of residence. A same-sex spouse residing in a state that does not recognize same-sex marriage is required to file federal taxes as married under federal law but is prohibited from filing as married in-state, thereby creating incompatibility—a filing status mismatch—between her federal and state income taxes. In order to resolve this, states should not require a same-sex spouse to prepare a pro forma “unmarried” federal return for state filing purposes, as this is inefficient to administer and enforce, and creates an inequitable compliance burden on the taxpayer. Nor should states delink their base from federal income or remove from their state tax codes all references to federal tax law, as this reduces tax efficiency. Instead, states should place traditional concerns of tax efficiency and equality above narrower same-sex marriage policy objectives when crafting their tax systems. Tax efficiency and equity require that states at least permit resident same-sex married taxpayers to allocate income and deduction figures already computed for their federal returns when preparing their state returns.

The United States spends substantially more as a percentage of GDP on legal services than most other countries. Simultaneously, various indicators suggest this outsized spending does not result in public perceptions of greater fairness or justice. While the digital automation of legal work offers the potential to help address this problematic paradigm, the legal academy’s reception of automation in law has been critical. This Note responds to these criticisms by showing the demonstrable objective and subjective fairness benefits that legal automation can achieve—all while reducing costs.