scholarly journals Lichtenberger and The Three Bears

2017 ◽  
Vol 4 (2) ◽  
pp. 209-239
Author(s):  
Samuel Crecelius
Keyword(s):  
Law Enforcement ◽  
Developmental Psychology ◽  
Fourth Amendment ◽  
Individual Liberty ◽  
Storage Devices ◽  
Individual Privacy ◽  
Digital Storage ◽  
Legitimate Interests ◽  
Private Search ◽  
Just Right

Finding a happy medium is hard. Often, it is a challenge to find a workable balance between two unworkable extremes. Known as the “Goldilocks Principle,” this phenomenon has been observed in fields as diverse as developmental psychology and astrobiology. As Goldilocks found in the Three Bears’ house, “just right” may not come on the first attempt. We may have to explore the extremes of the spectrum—“too hot” and “too cold”—before we can settle on “just right. Goldilocks also discovered that this process is all the more difficult in a new environment—like the Three Bears’ house. Goldilocks persevered, however, until she found “just right.” Federal courts face a similar dilemma in the private search exception to warrant requirements under the Fourth Amendment. On one hand are legitimate individual privacy interests and on the other, the legitimate interests of law enforcement to protect society. Courts must not handcuff law enforcement agents in their duties in the name of individual privacy (“too cold”), but neither should they unreasonably curtail individual liberty by giving too much latitude to legitimate government interests (“too hot”). It is no small task to identify an appropriate compromise between the competing principles of protecting the privacy of American citizens and protecting American citizens from crime. Like Goldilocks, courts today also face this challenge in an unfamiliar world. What is the “just right” application of the private search exception in the world of digital storage devices, which hold staggeringly large amounts of data and whose structure challenges traditional Fourth Amendment concepts?

Cyber-Search and Cyber-Seizure

2014 ◽  
pp. 471-514
Author(s):  
Catherine B. Lotrionte
Keyword(s):  
Cyber Security ◽  
Security Policy ◽  
Computer Systems ◽  
Fourth Amendment ◽  
Legal Framework ◽  
Executive Branch ◽  
Electronic Communications ◽  
Cyber Threats ◽  
Individual Privacy ◽  
The Government

This chapter discusses the nature of cyber threats against government and private computer systems, describing some steps the government has taken and the challenges involved in protecting those systems. The chapter argues that a national security approach for cyber security policy is the most promising option for preventing these cyber threats while operating within the domestic legal framework. After a review of the President's constitutional authorities to protect the nation from traditional threats, the chapter concludes that the President has some power to monitor Internet communications in transit within the United States when the communications threaten the welfare of the nation. The chapter recommends that this authority be augmented by Congressional action through legislation. The President's powers in cyber security, even given Congressional support, however, are still restrained by the protections the Fourth Amendment provides for traditional forms of communication and individual privacy. Although there is limited Fourth Amendment precedent in the area of cyber security, the well-established exceptions to the Fourth Amendment requirements, based on consent, special governmental needs and the reasonableness of the search or seizure, provide a legal basis for executive branch action to protect critical infrastructures and their computer systems. As the Courts have long held, these exceptions allow the government to conduct searches or seizures without being bound by all of the requirements of the Fourth Amendment. If the government develops its cyber security policy in line with these exceptions, this chapter argues the government can both protect critical computer systems and operate within Fourth Amendment doctrine that recognizes the legitimacy of privacy in electronic communications.

Problems of Implementation of the Constitutional Complaint in Ukraine and Ways to Resolve them

2020 ◽  
Vol 11 (2) ◽  
pp. 586
Author(s):  
Oksana SHCHERBANYUK
Keyword(s):  
Law Enforcement ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The European Union ◽  
Main Method ◽  
European Experience ◽  
Legal Effect ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
European Standards

The article explores the problems of implementation of the constitutional complaint in Ukraine and proposes ways of its solving. In terms of integration of Ukraine to the European Union there is a harmonization of the Ukrainian legislation to the European standards, so the analysis of foreign experience of functioning of institute of constitutional complaint is necessary to solve the problems in this area. Therefore, the main method in methodology of research of problems of implementation of constitutional complaints is comparative legal. As from 2016, Ukraine has introduced a normative model of individual constitutional complaint, which allowed physical persons and legal entities of private law to apply to the Constitutional Court of Ukraine for protection of violated constitutional rights, freedoms and legitimate interests. The article analyzes the jurisprudence of the Constitutional Court of Ukraine clarifies the admissibility criteria of the constitutional complaint in Ukraine, the procedural filters and proposed solutions of problems to improve the protection of rights and lawful interests of persons. It is concluded that the mechanism of the submission and consideration of the constitutional complaint, the algorithm of selection (filtering) of the constitutional complaints needs significant improvement with consideration for the European experience. In our opinion, the legal effect of the constitutional-legal institution will be made only in connection with the introduction of a complete, not normative constitutional complaint, which will significantly increase the responsibility of subjects of law-making, law enforcement, protection of human rights and ensure the authority of the Constitution of Ukraine.

scholarly journals Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

2021 ◽  
Vol 9 (1) ◽  
pp. 24-32
Author(s):  
Nicolae Silviu Pana ◽  
Ana Maria Pana
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Preventive Measures ◽  
Criminal Procedure ◽  
Practical Application ◽  
Criminal Proceedings ◽  
Individual Liberty ◽  
Judicial Control ◽  
House Arrest ◽  
Procedure Code

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

scholarly journals Secret Searches: The SCA's Standing Conundrum

2019 ◽  
pp. 1697
Author(s):  
Aviv Halpern
Keyword(s):  
Law Enforcement ◽  
Due Process ◽  
Service Providers ◽  
Fourth Amendment ◽  
Process Theory ◽  
Federal Law ◽  
Law Enforcement Agencies ◽  
Legal Proceedings ◽  
Procedural Due Process ◽  
The Individual

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions of the SCA that allow for nondisclosure unreviewable by the judiciary. Users that were searched but not charged have standing to challenge the scope of these warrants, but receive no notice that the search occurred. Service providers receive notice but have no standing on behalf of their users under the Fourth Amendment. This Note argues that the nondisclosure orders, therefore, create a procedural due process violation in addition to a Fourth Amendment violation. Users may have their privacy and property interests infringed without a meaningful opportunity to be heard. Under a due process theory, as opposed to a Fourth Amendment theory, this practice can finally be judicially reviewed.

scholarly journals The Content of a Paid Medical Services Contract: Theoretical and Applied Analysis

Legal Concept ◽  
2021 ◽  
pp. 89-99
Author(s):  
Denis Matytsin ◽  
Tatyana Plaksunova
Keyword(s):  
Law Enforcement ◽  
Point Of View ◽  
Medical Services ◽  
Judicial Practice ◽  
Legitimate Interests ◽  
General Scientific ◽  
The Russian Federation ◽  
Contract Structure ◽  
The Government ◽  
Practice Methods

Introduction: the paper deals with the features and conditions of a contract structure that is widely in demand at the present time – a paid medical services contract. The paper analyzes the provisions of the key legal acts regulating the sphere of paid medical services, including their contractual formalization, the legislation on consumer protection, which applies to the legal relations of the parties arising from paid medical services contracts, and the content of this contract. Special attention is paid to the consideration of the legislative and doctrinal approaches to the issue of essential and mandatory conditions of the contract under consideration, as well as to the relevant judicial and contractual practice. Methods: in the presented research, the traditional general scientific research methods were used, such as the dialectical method of cognition, analysis, synthesis, induction, deduction, etc., as well as the specific scientific legal methods, including formal legal, the method of legal interpretation, etc. Results: the authors substantiate the point of view that the essential conditions of the paid medical services contract are only the conditions on its subject. The authors believe that the conditions stipulated in par. 17 of the Decree of the Government of the Russian Federation No. 1006 of 04.10.2012 “On approval of the Rules for providing paid medical services by medical organizations” should be considered as mandatory conditions. Taking into account the existing approaches in the law enforcement practice, the conditions that are reflected in the paid medical services contract would help prevent disputes, as well as protect the rights and legitimate interests of the parties to the contract. Based on the analysis of the judicial practice, a list of conditions of the paid medical services contract that infringe on the rights of consumers has been formed, which should not be included in it. Conclusions: based on the results of the study, the two groups of factors were identified, which influence the formation of the methodological recommendations for drawing up a paid medical services contract; the recommendations for improving contractual work in the medical organizations are formulated.

scholarly journals The category of certainty of the Constitutional Court of the Russian Federation’s judgments as a legal standard for the implementation of its decisions by the courts

2018 ◽  
Vol 55 ◽  
pp. 02010
Author(s):  
Dmitry Gvozdetsky
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Direct Action ◽  
Practical Importance ◽  
Constitutional Court ◽  
Main Task ◽  
Legal Standard ◽  
Legitimate Interests ◽  
Constitutional Justice ◽  
The Russian Federation

This article analyzes the problems of the category of certainty of the decisions of the Constitutional Court of the Russian Federation in the judicial enforcement practice of courts of general and arbitration jurisdiction. The key role played by the Constitutional Court in ensuring the direct action of the “living” Constitution of the Russian Federation in the work of the courts is substantiated. The certainty and uncertainty of the implementation of the judgments of the Constitutional Court as the paired legal categories in judicial law enforcement practice are analyzed. Their content side is disclosed. It is noted that the failure to comply with the requirements of the category of certainty of the decisions of the Constitutional Court leads to ambiguity, incorrectness, and also complicates the process of their implementation by judicial instances. Taking into account the foregoing, the regulation of relations is not based on the uniform practice of law enforcement that entails a violation of rights and legitimate interests of specific applicants and an indefinite number of persons. It is also explained in the paper that in the judicial law enforcement practice, the main task of constitutional law is the certainty of the text of decisions of the Constitutional Court. Theoretical problems in the sphere of the domestic constitutional justice, which are of theoretical and practical importance for ensuring the unity and consistency of judicial enforcement practice, have been developed. Conclusions referring to the problem under study are drawn and suggestions are made.

ADDITIONAL GUARANTEES OF DEFENSE OF RIGHTS AND LEGITIMATE INTERESTS OF JUVENILE SUSPECTS, ACCUSED ON THE STAGE OF THE PRELIMINARY INVESTIGATION

2020 ◽  
pp. 176-184
Author(s):  
I. I. Kartashov ◽  
M. A. Kamyshnikova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Juvenile Suspects

The article analyzes the provisions of the criminal procedure law to implement supplementary guaran-tees to defend the rights and legitimate interests of juvenile suspects, accused on the stage of preliminary inves-tigation. Based on the analysis of law enforcement practice, the authors propose changes to certain provisions of the Criminal Procedure Code of the Russian Federation

Sign in / Sign up

Export Citation Format

Share Document