Digital Commons Network^™

Surveillance Of Emergent Associations: Freedom Of Association In A Network Society, Katherine J. Strandburg

Katherine J. Strandburg

Recent events have combined to bring of the prospect of using communications traffic data to ferret out suspect groups and investigate their membership and structure to the forefront of debate. While such “relational surveillance” has been around for years, efforts are being made to update traffic analysis to incorporate insights from “social network analysis” -- a means of analyzing relational structures developed by sociologists.1-13 Interest in employing social network analysis for law enforcement purposes was given a huge boost after September 11, 2001 when attention focused on tracking terrorist networks.5,7,9,11,12,14-17 Traffic data, when stored, aggregated, and analyzed using sophisticated computer …

Getting Under Your Skin--Literally: Rfid In The Employment Context, Marisa Anne Pagnattaro

marisa pagnattaro

This article explores the legal ramifications of the use of radio frequency identification chips (“RFID”) by employers. RFID is an automated data-capture technology that can be used to identify, track and store information contained on a tiny computer chip, which uses electromagnetic energy in the form of radio waves to communicate information. These chips can be implanted under an employee’s skin, worn in an employee’s clothing or in an identification badge. Part I presents a brief history of RFID, as well as novel and interesting uses in the workplace. This section also discusses security and safety concerns regarding the use …

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

Immunity From The Focused Attention Of Others: A Conceptual And Normative Model Of Personal And Legal Privacy, Jeffery L. Johnson

Jeffery L Johnson

The article defends an analysis of privacy as those areas of a person’s life where s/he is entitled to immunity from the illegitimate focused attention of others. It goes on to argue that such a model encompasses the concept of privacy in colloquial and legal contexts. The article concludes with an analysis of the normative value of privacy.

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience …

A Balancing Act Between Crime Prevention And Privacy Protection, Marcel Stuessi

Marcel Stüssi

How should individuals who live their lives with complete integrity, enjoy family harmony and pursue an honourable occupation be unmasked as potential, internationally operating terrorists and perpetrators of other serious crimes if not by secretly listening to their telephone calls, opening and reading the content of their letters or e-mail messages, and exchanging that data across frontiers and between Governments?

As pointed out in Part VII, Paragraph 1.4 to 1.6, this dilemma becomes apparent when considering the State’s duty to prevent terrorism and serious crime on the one hand, and have respect for privacy and individual liberties on the other. …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian Halliburton

Erin Espedal

Emerging surveillance technologies now allow operators to collect information located within the brain of an individual, allow the collection of forensic evidence regarding cerebral and cognitive processes, and are even beginning to be able to predict human intentions. While science has not yet produced a mind-reading machine per se, the devices referred to as “cognitive camera technologies” are substantial steps in the direction of that inevitable result. One such technique, a proprietary method called Brain Fingerprinting, is used as an example of the strong trend towards increasingly invasive and ever more powerful surveillance methods, and provides an entrée to a …

Online Privacy Policies: Contracting Away Control Over Personal Information?, Allyson W. Haynes

Allyson Haynes Stuart

Individuals disclose personal information to websites in the course of everyday transactions. The treatment of that personal information is of great importance, as highlighted by the recent spate of data breaches and the surge in identity theft. When websites share such personal information with third parties, the threat of its use for illegal purposes increases. The current law allows website companies to protect themselves from liability for sharing or selling visitors’ personal information to third parties by focusing on disclosures in privacy policies, not on substantive treatment of personal information. Because of the low likelihood that a visitor will read …

An Internal Critique Of Paris Adult Theatre I V. Slaton, Amien Kacou

Amien Kacou

This is a critique of the Supreme Court’s majority opinion in Paris Adult Theatre I v. Slaton, which endorsed an attempt by authorities in the state of Georgia to enjoin the exhibition of two allegedly obscene films in two privately owned commercial adult theaters. This case was decided in 1973, as a companion case to Miller v. California—which has shaped constitutional jurisprudence on the subject matter of obscenity ever since. What this critique purports to show is that the Court’s endorsement was inconsistent with its prior decision in Stanley v. Georgia, and that the Court distinguished that case arbitrarily. It …

Counteracting Ambition: Applying Corporate Compliance And Ethics To The Separation Of Powers Threat Of Domestic Surveillance, Paul E. Mcgreal

Paul E. McGreal

When it comes to domestic surveillance, even in the name of foreign intelligence, one constitutional challenge is to balance suspicion of and confidence in executive power - to leave the executive flexibility to meet changing threats, while ensuring that flexibility is not a pretext for abuse. To address this challenge, this Essay draws on expertise from an area of private law: the design, implementation, and operation of corporate compliance and ethics programs. A corporate compliance and ethics program consists of an organization's code of conduct, policies, and procedures that help achieve compliance with relevant laws as well as the organization's …

Autonomy And Right To Respect For Private Life, Jean Herveg

Jean HERVEG

No abstract provided.

Management Of The Special Risks Created By The Processing Of Medical Data In European Law, Jean Herveg

Jean HERVEG

No abstract provided.

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen E. Henderson

Stephen E Henderson

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Stephen E Henderson

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …