Susan Freiwald

Books

Law Review and Journal Articles

• "Reforming Surveillance Law," Berkeley Technology Law Journal (forthcoming). (Co-authored by Sylvain Metille.) SSRN
• "The Davis Good Faith Rule and Getting Answers to the Questions Jones Left Open,"  North Carolina Journal of Law and Technology (forthcoming). SSRN
• "Do Lawyers Violate the Driver’s Privacy Protection Act When They Obtain Drivers’ Motor Vehicle Records to Solicit the Drivers’ Participation in Litigation Without Obtaining the Drivers’ Express Consent?" 40 American Bar Association Preview of United States Supreme Court Cases 4 (2013). (WestlawNext, Westlaw Classic, Lexis)
• "Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact," 70 Maryland Law Review 677 (2011). Read More
• "A Comment on James Grimmelmann's Saving Facebook," 95 Iowa Law Review Bulletin 5 (2009). SSRN
• "Electronic Surveillance at the Virtual Border," 78 Mississippi Law Journal 329 (2008). (Symposium Issue) SSRN
• "Fourth Amendment Protection for Stored E-Mail," University of Chicago Legal Forum: Law in a Networked World 121 (2008). (Co-authored with Patricia L. Bellia.) SSRN
• "First Principles of Communications Privacy," 2007 Stanford Technology Law Review 3 (2007). (The article was republished in Surveillance and Privacy Exception (Amicus Books, 2009) and Professional Privileges and Judicial Approach (Amicus Books, 2009.) SSRN
• "The Fourth Amendment Status of Stored Email: The Law Professors' Brief in Warshak v. United States," 41 University of San Francisco Law Review  559 (2007). (Co-authored with Patricia L. Bellia.) SSRN
• "Online Surveillance: Remembering the Lessons of the Wiretap Act," 56 Alabama Law Review 9 (2004). SSRN
• "Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation," 14 Harvard Journal of Law & Technology 569 (2001). SSRN
• "Uncertain Privacy: Communication Attributes After the Digital Telephony Act," 69 Southern California Law Review 949 (1996). SSRN
• "Addressing the New Hazards of the High Technology Workplace," 104 Harvard Law Review 1898 (1991).
• "Generalizing Justice," 103 Harvard Law Review 1384 (1990). (This book note reviewed Lenore Walker's, Terrifying Love)
• "From Survey to Sample: Labor Market Data for Interwar London," 18 Historical Method 125 (1985). (With Barry J. Eichengreen)

Book Contributions

Opinion Pieces and Blog Posts

• "The Four Factor Test,"  . (Work in Progress) Read More
• "The Vanishing Distinction Between Real-time and Historical Location Data," Concurring Opinions (July 2012).
• "Fifth Circuit Considers Constitutionality of Cell Site Location Data," Concurring Opinions (April 2012).
• "Susan Freiwald on United States v. Warshak: Sixth Circuit Brings Fourth Amendment Protection to Stored Email," Concurring Opinions (December 2010).
• "Freiwald on Much-Anticipated Cell Location Privacy Decision," Concurring Opinions (September 2010).
• "Phone Tracking Should Require a Warrant," ACSblog (April 2009). (American Consitution Society)

Other Publications

Briefs

• U.S. Court of Appeals for the Fifth Circuit, brief in response to the Application of the United States of America for Historical Cell-Site Data ( (No. 20884). (Freiwald responds to the government's appeal of the U.S. District Court for the Southern District of Texas' denial of earlier application to retrieve historical cell site location data without a warrant.) Read More
• U.S. District Court for the Southern District of Texas, brief in opposition of government's request for review (2010) (No. H-10-998M, H-10-990M, H-10-981MF). (Regarding application of the United States for historical cell site data.) Read More
• U.S. Court of Appeals for the Third Circuit (2009). (Freiwald filed a brief in a case concerning the procedure by which government agents may compel cell phone providers to disclose stored information that indicates their subscribers’ physical location. She argued that a warrant is required under the Fourth Amendment. The brief was submitted in March but the court did not approve Freiwald as an amicus until April.) Read More
• U.S. Court of Appeals for the Third Circuit, Appeal from Memorandum Order Entered by the U.S. District Court for the Western District of Pennsylvania (2009) (No. 08-4227). (Authored amicus briefs in a case involving the legal procedures under which law enforcement agents can compel cellular providers to disclose historical records of cell sites passed by subscriber in his use of cell phone.) Read More
• U.S. District Court for the Western District of Pennsylvania, Brief of Amicus Curiae Susan Freiwald in Favor of Affirmance (2008). (Authored amicus briefs in a case involving the legal procedures under which law enforcement agents can compel cellular providers to disclose historical records of cell sites passed by subscriber in his use of cell phone.) Read More
• U.S. Court of Appeals for the Sixth Circuit, Warshak v. United States (November 2006) (No. 06-4092). (Co-authored with Tricia Bellia on behalf of law professors of cyberspace law and electronic surveillance. Argued that to comply with the Fourth Amendment the Electronic Communications Privacy Act must be interpreted to require a probable-cause warrant before investigators may require internet service providers to turn over the contents of their subscribers' email accounts.) Read More
• U.S. District for the Northern District of California, Hepting v. AT & T, 439 F.Supp.2d 974 (2006). Read More

Court Citation of Research

• U.S. District Court for the Southern District of Texas, overruled government objections to 2010 ruling that found cell data location information constitutionally protected (S.D. Tex. 2011) (No. Misc. H-II-223). (The court concurred with Freiwald's brief that argued cellular location information is protected under the Fourth Amendment. Read more here.)
• U.S. Court of Appeals for the Sixth Circuit, United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010) (No. 08-3997/4085/4087/4212/4429, 09-3176). (The court cited Freiwald and Patricia L. Bellia's article "Fourth Amendment Protection for Stored E-Mail.") Read More
• U.S. Court of Appeals for the Third Circuit, In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010) (No. 08-4227).
• U.S. District Court for the Eastern District of Wisconsin, United States of America v. David Szymuszkiewicz, WL 1873657 (E.D. Wis. 2009). (The court cites Freiwald's article "Online Surveillance: Remembering the Lessons of the Wiretap Act," Alabama Law Review.)
• Supreme Court of California, Barret v. Rosenthal, Cal. Rptr.3d 55, 146 P.3d 510 (Cal. 2006). (The court cites Freiwald's 2001 article "Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation," Harvard Journal of Law & Technology.)
• U.S. District Court for the District of Arizona, Hy Cite Corporation v. Badbusinessbureau, 418 F.Supp.2d 1142 (D. Ariz. 2005) (No. CIV. 04-2856 PHX EHC). (The court cites Freiwald's 2001 article "Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation," Harvard Journal of Law & Technology.)
• U.S. District Court for the Southern District of Texas, In the Matter of the Application of the United States of America for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process, (2) Access to Customer Records, and (3) Cell Phone Tracking, 441 F.Supp.2d 816 (S.D. Texas 2006) (No. H-06-356M).
• U.S. District Court for the Southern District of Texas, In Re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747 (S.D. Tex. 2005) (No. H-05-557M). (The court cites Freiwald's 1996 article "Uncertain Privacy: Communication Attributes After the Digital Telephony Act.")
• U.S. District Court for the Eastern District of New York, In the Matter of the Application of the United States of America for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device, 396 F.Supp.2d.294 (E.D. New York 2005).
• U.S. Court of Appeals for the Ninth Circuit, Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (No. 01-563830, 01-56556). (The court cites Freiwald's 2001 article "Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation," Harvard Journal of Law & Technology.)

Presentations

• Panelist, "Responding to Law Enforcement," Stanford Program in Law, Science and Technology's Ninth Annual Stanford E-Commerce Best Practices Conference, Palo Alto, Calif. (June 2012). (Co-paneled with Joseph DeMarco, Mark Zwillinger, and Jennifer Granick.)
• Presenter, "Simply More Privacy Protective: Law Enforcement Surveillance in Switzerland as Compared to the United States," George Washington Law School and Berkeley Law's Fifth Annual Privacy Law Scholars Conference, Washington, D.C. (June 2012). (Co-presented with co-author Sylvain Metille.)
• Presenter, "Free Speech and Due Process Concerns with Protect IP Act and SOPA," University of San Francisco School of Law McCarthy Institute and Microsoft Corporation Symposium, "Trademark Law and Its Challenges," New York, N.Y. (February 2012).
• Panelist, "Mapping our Privacy: Use and Misuse of Location Data," University of San Francisco Law Review Symposium, "Big Brother in the 21st Century? Reforming the Electronic Communications Privacy Act," (February 2012).
• Presenter, "A Primer on Electronic Privacy Law," University of San Francisco Law Review Symposium, "Big Brother in the 21st Century? Reforming the Electronic Communications Privacy Act," (February 2012). (Co-presented with Paul Ohm.)
• Presenter, "Current Problems in Con Law," UC Hastings College of the Law, San Francisco, Calif. (January 2012). (Co-presented with Joe Grodin and Hon. Marsha Berzon. Focused on United States v. Jones, a GPS-tracking case before the U.S. Supreme Court.)
• Presenter, "The ACLU's Work on Electronic Communications and Information Privacy," American Civil Liberties Union of Northern California, San Francisco, Calif. (November 2011).
• Presenter, "Mapping Our Movements: Law Enforcement Access to Cell Site Location Data," Whittier Law School's 29th Annual Law Review Symposium "The Law of the Smart Phone," Whittier, Calif. (November 2011).
• Presenter, "Warshak in the Workplace (on the Workplace Diversity Panel)," University of Wisconsin Law School Symposium "The Constitutionalization of Labor and Employment Law," Madison, Wis. (October 2011).
• Presenter, "Is Big Brother Tracking You: Location Data and Fourth Amendment Privacy," Yale Information Society Project Speaker Series, New Haven, Conn. (September 2011). (View presentation here.)
• Panelist, "Privacy Responses to Big Data," The Bipartisan Policy Center and the Center for Democracy and Technology Conference "The Emerging Reality of Big Data: Over-the-Horizon Opportunities and Challenges for National Security and Privacy," Washington, D.C. (June 2011).
• Moderator, "Big Data and Privacy," Privacy Law Scholars' Conference, Berkeley, Calif. (June 2011). (Discussion on Paul Ohm's article "Big Data and Privacy.)
• Presenter, "Constitutional Protection of Cell Site Location Data and Related Information," Stanford Law School "Law, Science, and Technology Colloquium," Palo Alto, Calif. (May 2011).
• Panelist, "Individual Privacy: Challenges Grow as Technology Flourishes," 2011 Alaska Bar Convention, Fairbanks, AK (May 2011).
• Presenter, "Social Media: Legal Implications and 'Real World' Legal Implementations," Northern California Association of Law Libraries Spring Institute "Winds of Change: Where the Legal Industry is Going and How to Harness the Power of Opportunity Conference," San Francisco, Calif. (April 2011).
• Panelist, "Shifting Standards for Law Enforcement and Government Access to Location Data," Fordham University's Fifth Annual Law and Information Society Symposium "Mobile Devices, Location Technologies, and Shifting Values," New York, N.Y. (March 2011).
• Panelist, "Technology: Shaping the Task of Lawmaking," UC Berkeley School of Law Conference "Technology: Transforming the Regulatory Endeavor," Berkeley, Calif. (March 2011).
• Panelist, "The Implications of DNT," UC Berkeley Center for Law and Technology "Browser Privacy Mechanisms Roundtable," Berkeley, Calif. (February 2011). (Read More)
• Presenter, "Privacy Rights and Social Media," Globalaw Annual Members Meeting Hosted by Hanson Bridgett LLP, San Francisco, Calif. (November 2010).
• Panelist, Bay Area Lawyer Chapter of the American Constitution Society Event "Privacy Law 2.0--Modernizing the Electronic Communications Privacy Act," San Francisco (August 2010).
• Panelist, "Privacy Law," Stanford Program in Law, Science, and Technology at the Stanford Center for Computers and the Law "Intelligent Privacy Management Symposium," Palo Alto (March 2010).
• Presenter, class seminar on the Fourth Amendment protection of cell site location information, Stanford Law School "Spring 2010 Law, Science, and Technology Colloquium," Palo Alto (January 2010).
• Presenter, "What a New ECPA (Electronic Communications Privacy Act) Should Regulate," University of Colorado Silicon Flatirons Center for Law, Technology, and Entrepreneurship Conference "Reforming Internet Privacy Law," Boulder, Colo. (December 2009).
• Presenter, The Berkeley Law School and George Washington University Law School Second Annual Privacy Law Scholars Conference, Berkeley, Calif. (June 2009). (Freiwald was a selected commentator and session mediator for a paper written by Jerry Kang (UCLA Law) on Self-Analytic Privacy.)
• Presenter, "Section 230 of the Communications Decency Act (including the legitimacy of the section and recent developments)," Bar Association of San Francisco IP and Internet Law Section Seminar "Web 2.0, Defamation on the Web, and the Role for Web Providers," San Francisco, Calif. (May 2009).
• Presenter, University of Maryland School of Law, Baltimore, Md. (April 2009). (Freiwald participated in a brainstorming roundtable on fusion centers with other privacy and technology scholars and activists.)
• Presenter, "Electronic Communications Surveillance and the Fourth Amendment," New York University’s Information Law Institute and the Department of Culture and Communication Information Technology and Society Series, February 2009 (New York, N.Y.).
• Moderator, "First Annual Privacy Law Scholars Conference," George Washington University, Washington, D.C. (June 2008). (Freiwald was a selected commentator on a paper written by Paul Ohm titled "The Thin Line Between Reasonable Network Management and Illegal Wiretapping.")
• Presenter, "Fourth Amendment Inside the Electronic Border," University of Mississippi Center for Justice and the Rule of Law in collaboration with the National Judicial College Symposium for Appellate Judges on Computer Searches and Selected Fourth Amendment Issues Fourth Amendment at the International Border Symposium, Oxford, Miss. (April 2008).
• Presenter, "Fourth Amendment Protection for Stored Communications," Stanford Law School "Spring 2008 Law, Science, and Technology Colloquium," Palo Alto (February 2008).
• Presenter, "The Limits of Immunity for Third Party Content," the Santa Clara Computer and High Tech Law Journal Symposium: Internet Collaboration, Charting the Waters of Virtual Worlds, Web. 2.0 and the GPL, Santa Clara (February 2008).
• Moderator, "Social Control: Issues of Privacy and Autonomy," University of San Francisco Law Symposium "The Toll Roads: The Legal and Political Debate over Net Neutrality," (January 2008).
• Presenter, "The Right to Privacy in IT Systems in U.S. Law," Stanford University 2008 Transatlantic Information Law Symposium, Palo Alto (2008).
• Presenter, "Privacy Rights in the Electronic Age," Nebraska Judges Meeting, Lincoln, Neb. (October 2007).
• Presenter, "What Fourth Amendment Protection for E-mail Means for Electronic Surveillance," University of Chicago Legal Forum 2007 Symposium "Law in a Networked World," (October 2007).
• Presenter, "First Principles of Communication Privacy," Stanford Law School Forum "Beyond a Physical Conception of the Fourth Amendment: Search and Seizure in the Digital Age," Palo Alto (January 2007).
• Presenter, "Intermediary Liability for Defamation after the Barrett case," Stanford Law School "Fall 2006 Law, Science, and Technology Colloquium," Palo Alto (November 2006).
• Presenter, "The Warshak Case and Electronic Surveillance," University of San Francisco Law Symposium "Companies Caught in the Middle," (October 2006).
• Presenter, "A Historical Perspective on Current Trends in Information Privacy and Security Law," Practicing Law Institute Seventh Annual Institute on Privacy Law "New Developments and Compliance Issues in a Security Conscious World," San Francisco (June 2006).
• Presenter, "Third Party Liability for Online Defamation," New York University School of Law Electronic Commerce Class, (April 2006). (Invited by Margaret Jane Radin to give a guest lecture)
• Moderator, UC Hastings College of the Law Communication and Entertainment Law Journal Symposium "Digital Rights Management Technologies and Digital Music, the Policy Issues," San Francisco (March 2006).
• Presenter, "What Inhibits Congress from Reforming the Law of Online Surveillance?" Stanford Law School "Fall 2005 Law, Science, and Technology Colloquium," Palo Alto (December 2005).
• Presenter, "Reforming Surveillance Law in a Climate of Fear," UC Berkeley School of Law "Property and Contract Law Go High Tech," (October 2005). (Invited by Pamela Samuelson and Margaret Jane Radin to teach a seminar class)
• Presenter, "Treble Damages and Private Remedies," University of San Francisco Law Review Symposium "The Uncertain Future of Antitrust," (October 2005).
• Moderator, "Software after Copyright," Stanford Law School, Palo Alto (April 2005).
• Presenter, "Third Party Liability for Online Defamation," Stanford Law School "Spring 2005 Law, Science, and Technology Colloquium," Palo Alto (April 2005).
• Presenter, "U.S. v. Councilman Debate," Computers, Freedom, and Privacy Conference, Seattle, Wash. (April 2005).
• Presenter, "Regulating Digital Technology in the Criminal Law: Federal Law, State Law, Federal Preemption, and Overarching Policy Issues," California Senate Public Safety Committee Hearing "Crime by the Digits: Digital Communication and California Criminal Law," Santa Clara (March 2005).
• Presenter, "Treating Online Surveillance Like A Wiretap," Cardozo Law School Modest Proposal Conference, New York, N.Y. (February 2005).
• Presenter, "Third Party Liability for Online Defamation," Electronic Frontier Foundation Cybersalon, San Francisco (December 2004).
• Presenter, "Online Surveillance," UC Davis School of Law Faculty Lunch Series, Davis (November 2004).
• Presenter, "Online Surveillance and Comparative Institutional Analysis," University of Wisconsin Law School Comparative Institutional Analysis Symposium, Madison, Wis. (September 2004).
• Presenter, "Defamation Liability for Online Intermediaries," presentation to E-Commerce class, Stanford Law School, Palo Alto (April 2003 and December 2003).
• Presenter, "Electronic Privacy after the USA Patriot Act," St. Thomas More Society Luncheon Speaker Series, San Francisco (January 2002).
• Presenter, "The Constitutionality and Necessity of Electronic Data Privacy Protections," Chapman University School of Law Intellectual Property, Free Speech, and Economic Rights Conference, Orange (April 2001).
• Presenter, "A Comparative Institutional Analysis of Online Defamation," Santa Clara University Law School Privacy in the New Millennium Conference, Santa Clara (February 2000).
• Presenter, "Cyberspace Law Overview," University of San Francisco Law Review Symposium "Reviewing the Year in Cyberspace," (February 1999).
• Presenter, "Legal Change and the Internet: Should it be Up to Congress or to the Courts to Navigate the Information Superhighway?" Academy of Legal Studies in Business Conference, (August 1996).
• Presenter, "The Digital Telephony Law: The Uncertain Privacy of Communication Attributes," Academy of Legal Studies in Business Conference, (August 1995).

Testimony and Hearings

Written Testimony and Commentary

• Oral Argument, U.S. Court of Appeals for the Fifth Circuit, In Re Applications of the United States of America for Historical Cell Site Data (October 2012). (Freiwald filed amicus curaie brief in support of affirmance.)
• Oral argument, U.S. Court of Appeals for the Third Circuit (February 2010). (Freiwald advocated for legal limits on how the government can use cell site tracking information.)

Advisor or Consultant

Counsel

Symposia Organization

Professional Membership

• Appointee, Palantir Council of Advisors on Privacy and Civil Liberties (October 2012).

Fellowships

Other Service

• Faculty Advisor, University of San Francisco Law Review Symposium, "Big Brother in the 21st Century? Reforming the Electronic Communications Privacy Act," San Francisco, Calif. (February 2012).
• Organizer and Facilitator, Department of General Counsel and Privacy-Stakeholders Meeting (San Francisco, Calif.) (October 2011).
• Participant, Privacy Groups' Roundtable, Washington, D.C. (June 2011). (Freiwald met with Senator Leahy's staff to discuss the senator's proposed electronic communication privacy bill.)