Law Commons^™

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Reflections On “Personal Responsibility” After Covid And Dobbs: Doubling Down On Privacy, Susan Frelich Appleton, Laura A. Rosenbury

Scholarship@WashULaw

This essay uses lenses of gender, race, marriage, and work to trace understandings of “personal responsibility” in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American “welfare state” through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, …

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Pandemic Surveillance Discrimination, Christian Sundquist

Articles

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

Can The Government Deport Immigrants Using Information It Encouraged Them To Provide?, Amanda Frost

Articles in Law Reviews & Other Academic Journals

This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any …

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

Articles

Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

13th Annual Diversity Symposium Dinner 04-07-2016, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

All Faculty Scholarship

Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Regulating The Internet Of Things: First Steps Toward Managing Discrimination, Privacy, Security, And Consent, Scott R. Peppet

Publications

The consumer "Internet of Things" is suddenly reality, not science fiction. Electronic sensors are now ubiquitous in our smartphones, cars, homes, electric systems, health-care devices, fitness monitors, and workplaces. These connected, sensor-based devices create new types and unprecedented quantities of detailed, high-quality information about our everyday actions, habits, personalities, and preferences. Much of this undoubtedly increases social welfare. For example, insurers can price automobile coverage more accurately by using sensors to measure exactly how you drive (e.g., Progressive 's Snapshot system), which should theoretically lower the overall cost of insurance. But the Internet of Things raises new and difficult questions …

A Private Underworld: The Naked Body In Law And Society, Lawrence M. Friedman, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

In general, the literature on privacy stresses, quite naturally, our right to keep things private, or to make our own decisions. The individual, the citizen, is the center of gravity. There is a great deal of material on the limits of privacy, on threats to privacy, and the like. In this Article, the authors want to discuss what one might call mandatory privacy: those aspects of life that we are required to keep secret, hidden, or private, the things that we must keep private, whether we want to or not. This is a subject that has been mostly, though not …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

All Faculty Scholarship

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the form …

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Employing E-Health: The Impact Of Electronic Health Records On The Workplace, Sharona Hoffman

Faculty Publications

Electronic Health Record (HER) systems may soon become a fixture in most medical settings. President Obama’s 29 stimulus legislation includes $19 billion to promote their implementation. The sophisticated features and efficiencies of HER systems have the potential to improve health outcomes and enhance patient welfare considerably. However, this emerging technology also poses significant challenges and risks, not the least of which are its workplace impacts. This article provides a first of its kind analysis of the ramifications of HER systems for workers and employers.

The potential effects of health information computerization on the workplace are numerous. Employers may obtain and …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill

Faculty Publications

The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, …

Privacy Is The Problem, Raymond Shih Ray Ku

Faculty Publications

A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, …

Mapping Online Privacy, Jacqueline D. Lipton

Articles

Privacy scholars have recently outlined difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy. Shifting notions of 'reasonable expectations of privacy' in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework. This article offers a map of privacy that might help delineate at least the outer boundaries of Web 2.0 privacy. …

Student Comprehension Of Privacy Issues In Sns, Collaborative Project

Dyson College- Seidenberg School of CSIS : Collaborative Projects and Presentations

This entry adheres to the use of the quad chart template to provide for a succint description only of the current research project undertaken by the participants. It provides for the following information:

1. Participant/s
2. Overall project goals
3. Illustrative picture/s
4.Specific research/artistic/pedagogic foci

Lawrence: An Unlikely Catalyst For Massive Disruption In The Sphere Of Government Employee Privacy And Intimate Association Claims, Matthew W. Green Jr.

Law Faculty Articles and Essays

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of 'free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent, Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public …

Reproductive Rights As Health Care Rights, B. Jessie Hill

Faculty Publications

U.S. legal scholarship concerning reproductive rights has largely revolved around the poles of decisional autonomy, privacy, and equality, with a concomitant a tendency to de-emphasize the medical aspect of abortion rights. The medical approach has been particularly disfavored by feminist scholars, largely due to concerns about undermining the equality rationale for reproductive rights and placing too much power in the hands of physicians. In addition, American constitutional law has tended to treat reproductive-rights cases differently from other cases raising challenges to government restrictions on individuals’ rights to access certain forms of medical treatment, granting heightened judicial scrutiny to the former …