scholarly journals Seeking the Source: Criminal Defendants’ Constitutional Right to Source Code

2020 ◽  
Author(s):  
Steven M. Bellovin ◽  
Matt Blaze ◽  
Susan Landau ◽  
Brian Owsley
Keyword(s):  
Due Process ◽  
Computer Software ◽  
Computer Code ◽  
Analysis Data ◽  
Forensic Analysis ◽  
Fundamental Rights ◽  
Software Programs ◽  
Constitutional Right ◽  
The Government ◽  
The Right

The right to a fair trial is fundamental to American jurisprudence. The Fifth Amendment of the Bill of Rights guarantees “due process,” while the Sixth provides the accused with the right to be “confronted with the witnesses against him.” But “time works changes, brings into existence new conditions and purposes.” So it is with software. From the smartphones we access multiple times a day to more exotic tools—the software “genies” of Amazon Echo and Google Home—software is increasingly embedded in day-to-day life. It does glorious things, such as flying planes and creating CAT scans, but it also has problems: software errors. Software has also found its way into trials. Software’s errors have meant that defendants are often denied their fundamental rights. In this paper, we focus on “evidentiary software”—computer software used for producing evidence—that is routinely introduced in modern courtrooms. Whether from breathalyzers, computer forensic analysis, data taps, or even FitBits, computer code increasingly provides crucial trial evidence. Yet despite the central role software plays in convictions, computer code is often unavailable to examination by the defense. This may be for proprietary reasons—the vendor wishes to protect its confidential software—or it may result from a decision by the government to withhold the code for security reasons. Because computer software is far from infallible—software programs can create incorrect information, erase details, vary data depending on when and how they are accessed—or fail in a myriad of other ways—the only way that the accused can properly and fully defend himself is to have an ability to access the software that produced the evidence. Yet often the defendants are denied such critical access. In this paper, we do an in-depth examination of the problem. Then, providing a variety of examples of software failure and discussing the limitations of technologists’ ability to prove software programs correct, we suggest potential processes for disclosing software that enable fair trials while nonetheless prevent wide release of the code.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

Judicial Review

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Fundamental Rights ◽  
Bank Resolution ◽  
The Us ◽  
Charter Of Fundamental Rights ◽  
Us Constitution ◽  
Takings Clause ◽  
The Right ◽  
The Eu

The exercise of extensive powers by authorities during the recovery and resolution process may interfere with constitutionally protected fundamental rights of stakeholder in a multitude of ways. Particularly relevant are the right to conduct a business and the right to property under the EU Charter of fundamental rights, as well as the takings clause under the US constitution. A balance needs to be struck between the aims and objectives of bank resolution and the rights of investors and the requirements of due process. This is normally achieved through expedited and limited judicial review. This chapter assesses whether and to what extent the respective procedures are in line with constitutional and fundamental rights requirements.

scholarly journals Equal Access and the Right to Marry

2018 ◽  
Author(s):  
Nelson Tebbe ◽  
Deborah Widiss
Keyword(s):  
Due Process ◽  
Government Support ◽  
Equal Access ◽  
Equal Protection ◽  
University Of Pennsylvania ◽  
Sexual Intimacy ◽  
Family Structures ◽  
Civil Marriage ◽  
Constitutional Right ◽  
The Right

158 University of Pennsylvania Law Review 1375 (2010)How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.

scholarly journals Hostage Situation And Its Resolution In Ethiopia

2020 ◽  
Vol 2 (1) ◽  
pp. 07-13
Author(s):  
Negesse Asnake Ayalew
Keyword(s):  
Mentally Ill ◽  
Negative Impact ◽  
Analysis Data ◽  
Government Officials ◽  
Hostage Negotiation ◽  
Policy And Strategy ◽  
The Government ◽  
The Right ◽  
Document Review ◽  
Media Review

Purpose of the study: One of the modus operandi of criminals such as terrorist, emotional, mentally ill person to achieve their need is held person hostage, especially government officials, investors, and tourists. The police also used to force to secure peace and security, but now the police use the hostage negotiation team to save the life of hostage-taker and hostage. These hostage-takers take innocent hostage persons as means of negotiation, which may terrorize everybody, such as an investor, tourist, and vulnerable group, which have a negative impact on the development and peace of the country. Additionally, the right to life is the mother of other human rights. The purpose of this paper is to evaluate the practice of hostage situation and its resolution Methodology:  Data were collected through document review and interviews of police and victim, who were selected purposively since they have direct relation. This is desktop research and descriptive design. The data were collected through document review and media review. The collected data were analyzed thematically. Finding: The result of the analysis data shows that there is a hostage situation in Ethiopia, and the response of the police is the use of force than the negotiation team. Application: The police should establish a hostage negotiation department with professional negotiators. The governments also should enact negotiation policy and strategy in Ethiopia. Novelty/Originality: There is a hostage situation, and its resolution lacks clear guidelines in Ethiopia, and nobody studied it. Therefore, this study may use as reference material for students'; the government may use it as input for policy and lawmakers.

scholarly journals Constitutionalizing Access

2021 ◽  
Vol 3 (1) ◽  
pp. 1-17
Author(s):  
Jessica Terkovich ◽  
Aryeh Frank
Keyword(s):  
Case Law ◽  
State Constitutions ◽  
The Supreme Court ◽  
Explicit Recognition ◽  
Constitutional Right ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
Right Of Access ◽  
The U.S

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone. 

scholarly journals LEGAL FRAMEWORK IN THE FULFILMENT OF RIGHT TO EDUCATION AS CONSTITUTIONAL RIGHT OF CITIZENS IN BORDER AREA OF NUNUKAN-NORTH KALIMANTAN PROVINCE (Comparison Study and Legal Framework of Right to Education of Citizens in Border Area of Indonesia-Sabah, Malaysia)

2017 ◽  
Vol 2 (2) ◽  
pp. 159
Author(s):  
Yahya Ahmad Zein ◽  
Aditia Syaprillah ◽  
Arif Rohman
Keyword(s):  
Model Comparison ◽  
Legal Framework ◽  
Border Region ◽  
Right To Education ◽  
Border Area ◽  
Policy Model ◽  
Constitutional Right ◽  
The Government ◽  
The Right ◽  
Area Management

The issues was found based on research results in the first year of the model of the fulfillment of the right to education as a constitutional right of citizens in the Nunukan-North Kalimantan Province. The research addresses the policies and models of the fulfillment of the right to education there are still various weaknesses, especially related to the implementation of policies has been contained in the Local Regulations, even worsened by the neglect of border area management principles based on the fulfillment of the right to education that will break the poverty chain, and will strengthen the orientation of border area management based on the welfare of the people. This is of course very interesting when compared to Malaysia's neighboring state Sabah in the fulfillment of the right to education concerning the availability, affordability, acceptance, and conformity of education.The main issues be discussed in this study are how is comparative policies and how os comparison of the framework in the fulfillment of the right to education as a constitutional right of citizens in the border region of Nunukan Indonesia and Sabah Malaysia.this research is a comparative law study so that it will provide a new policy model of border area management based on the fulfillment of the right to education.The results of this study conclude that the Malaysian government's policy of opening and developing the port of Tawau at the end of the 19th century and the port of Tawau is the third major destination in Sabah after Kota Kinabalu and Sandakan as evidence that the management of its border areas using the prosperity approach has brought prosperity to Malaysian citizen who is on the border of his country and this is directly proportional to the strengthening of human resources through the Infrastructure and quality of education of his country. The results of the Model comparison indicate that there are significant differences in the fulfillment of the right to education as a constitutional right of citizens in the border regions of Nunukan Indonesia and Sabah Malaysia in terms of the conditions of educational infrastructure and access to education information. Affordability of school locations and systems that facilitate the process towards educational facilities.Availability of quality education standards for citizens and the availability of adequate teachers at every level of education.The aim of this research is not only for the development of science, especially the knowledge of Indonesian border region, but also contributes as a reference for the government related to the policy of border area management in Indonesia, particularly the reference for Local Govenrmment of Nunukan.

The Right to Self-Determination under the Ethiopian Constitution: A Legal Tool for Indigenous Peoples’ Protection against Land Alienation?

2019 ◽  
Vol 63 (3) ◽  
pp. 359-383
Author(s):  
Tilahun Weldie Hindeya
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Self Determination ◽  
Land Resources ◽  
Discretionary Power ◽  
The People ◽  
Constitutional Right ◽  
The Government ◽  
The Right

AbstractSince 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.

Human Rights of Indigenous Minorities in Tanzania and the Courts of Law

2007 ◽  
Vol 14 (4) ◽  
pp. 455-487 ◽  
Author(s):  
Chris Maina Peter
Keyword(s):  
Fundamental Rights ◽  
Way Of Life ◽  
Running Water ◽  
High Court ◽  
Modern Development ◽  
Hunting And Gathering ◽  
Indigenous Minorities ◽  
The Government ◽  
The Right ◽  
Court Of Appeal

AbstractTanzania has several indigenous minorities. They include the Maasai, Barbaig, Hadzabe, Ndorobo and others. Some are still engaged in hunting and gathering, while others are pastoralists. The government is unhappy about their way of life and believes that it has a duty to “emancipate” these “backward” people by “civilising” them through bringing “modern development” to areas they live in. This is through the building of schools and hospitals, the provision of running water, etc. In the process of undertaking this mission, it has negatively affected the lives of these groups. It has destroyed their property, and displaced them from their traditional living areas. This has been done in total disregard to their ways of life, traditions, beliefs and above all the right to own property which is guaranteed by the Constitution. Some of the indigenous minorities whose rights have been violated by the government have decided to challenge the violation of their fundamental rights in the courts of law. This paper examines the handling of the cases related to the rights of indigenous minorities by the higher judiciary in Tanzania, particularly the High Court and the Court of Appeal. Experience indicates that, like the government, the judiciary has been sympathetic toward indigenous minorities.

scholarly journals A Teoria das Dimensões dos Direitos Fundamentais como Pressupostos à Consagração de Garantias Fundamentais: um Ensaio sobre o Acesso Efetivo à Justiça

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Paula Gigante Viana
Keyword(s):  
Key Words ◽  
Due Process ◽  
Fundamental Rights ◽  
Procedural Law ◽  
Constitutional State ◽  
Right Of Action ◽  
Due Process Of Law ◽  
The Subject ◽  
The Right ◽  
Procedural Rights

Resumo: O estudo objetiva a demonstração da teoria das dimensões dos direitos fundamentais como pressuposto à consagração de garantias fundamentais processuais. Para atingir tal intento foi utilizado o método da revisão bibliográfica, notadamente da doutrina constitucional, bem como do estudo de casos trazidos a debate por autores que analisam o processo sob a ótica da Constituição. A relevância do assunto deve-se ao momento atual da ciência jurídica em que a efetividade dos direitos fundamentais é um escopo concreto. Constatou-se a necessidade de tornar eficiente e efetiva a prestação jurisdicional no Estado constitucional e de reconhecer as garantias processuais como direitos fundamentais. Em tal contexto, a eficácia irradiante, a filtragem constitucional e a multifuncionalidade dos direitos fundamentais são abordados. E as balizas teóricas do neoconstitucionalismo e do neoprocessualismo ou formalismo-valorativo são analisadas como pano de fundo das noções desenvolvidas. Assim, a verificação da evolução dos direitos fundamentais processuais, mormente do direito de ação (tutela jurisdicional efetiva) e do devido processo legal (processo justo), a partir da aceitação da teoria das dimensões dos direitos fundamentais, conduz à conclusão de que se caminha na direção de um acesso cada vez mais efetivo à justiça. Palavras-chave: Normas Jusfundamentais; Direito à Proteção; Direito Processual; Conformação do Procedimento; Devido Processo Legal.  Abstract: The study aims at demonstrating the theory of dimensions of fundamental rights as an assumption to the recognition of fundamental procedural guarantees. In order to accomplish this intent the method of bibliographic review was used, notably the constitutional doctrine, as well as the study of cases brought into debate by authors who analyze the process under the eyes of the Constitution. The relevance of the subject is at the current moment of the juridical science in which the effectiveness of fundamental rights has turned into a concrete objective. It was verified the necessity to achieve an efficient and effective jurisdiction in the constitutional State and to recognize procedural guarantees as fundamental rights. In this context, the radiant effectiveness, the constitutional filtration and the multifunction of fundamental rights are approached. And the theoretical landmarks of neo-constitutionalism and neo-proceduralims are analyzed as a background for the notions developed. So the verification of the evolution of fundamental procedural rights, especially the right of action and the due process of law (fair trial), since the admission of the theory of dimensions of fundamental rights, conduce to the conclusion that heads toward the direction of a more effective judicial access. Key-words: Jus-Fundamental Norms; Right to Protection; Procedural Law; Procedure Adequacy; Due Process of Law.

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