Law Commons^™

Critical Data Theory, Margaret Hu

William & Mary Law Review

Critical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in …

Why (And How) The Constitution Should Protect Prisoners From Gratuitous Disclosure Of Their Hiv/Aids Status, Dillon Schweers

William & Mary Law Review

This Note is not the first to advocate for prisoners’ constitutional privacy rights concerning their HIV/AIDS status, but it is the first to focus on isolated incidents of disclosure rather than general policies that tend to lead to disclosure like mandatory testing or segregation based on HIV/AIDS status. This Note argues that the Fourteenth Amendment’s Due Process Clause should protect prisoners from isolated disclosures, meaning prisoners should have a § 1983 cause of action against guards or other prison officials who disclose their HIV/AIDS status in a gratuitous manner.

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The proceeding section of this Note, Part I, details the …

Technology Integration In Higher Education And Student Privacy Beyond Learning Environments -- A Comparison Of The Uk And Us Perspective, Iria Giuffrida, Alex Hall

Faculty Publications

Technology integration in higher education (HE) has brought immense innovation. While research is investigating the benefits of leveraging, through learning analytics, the data created by the greater presence of technology in HE, it is also analysing the privacy implications of vast universes of data now at the fingertips of HE administrators. This paper argues that student privacy challenges linked to technology integration occur not only within but also beyond learning environments, namely at the enterprise level. By analysing the UK and US legal frameworks surrounding how HE institutions respond to parents demanding disclosure of their adult children's personal data in …

The Tesla Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly …

Preempting The States And Protecting The Charities: A Case For Nonprofit-Exempting Federal Action In Consumer Data Privacy, Sarah Fisher

William & Mary Law Review

This Note argues that Congress should use its Commerce Clause power to pass a consumer data privacy measure that (1) preempts state law and (2) explicitly exempts 501(c)(3) organizations from compliance. Such preemptive action with a narrow 501(c)(3) carve-out would avoid the potential harm of exempting too broad a group of nonprofit entities while ensuring charitable organizations’ continued existence, would be more protective of both the individual privacy right and 501(c)(3) existence than merely adjusting the revenue dollar threshold at which entities must comply, and would properly balance the individual right to control personal data with the societal good served …

The Case For Local Data Sharing Ordinances, Beatriz Botero Arcila

William & Mary Bill of Rights Journal

Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig …

Private Rights Of Action In Privacy Law, Lauren Henry Scholz

William & Mary Law Review

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …

A New Compact For Sexual Privacy, Danielle Keats Citron

William & Mary Law Review

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little could be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Data Of The Dead: A Proposal For Protecting Posthumous Data Privacy, Kate C. Ashley

William & Mary Law Review

No abstract provided.

Cambridge Analytica's Black Box, Margaret Hu

Faculty Publications

The Cambridge Analytica–Facebook scandal led to widespread concern over the methods deployed by Cambridge Analytica to target voters through psychographic profiling algorithms, built upon Facebook user data. The scandal ultimately led to a record-breaking $5 billion penalty imposed upon Facebook by the Federal Trade Commission (FTC) in July 2019. The FTC action, however, has been criticized as failing to adequately address the privacy and other harms emanating from Facebook’s release of approximately 87 million Facebook users’ data, which was exploited without user authorization. This Essay summarizes the FTC’s response to the Cambridge Analytica–Facebook scandal. It concludes that the scandal focuses …

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district …

Privacy Or The Polls: Public Voter Registration Laws As A Modern Form Of Vote Denial, Audrey Paige Sauer

William & Mary Law Review

On May 11, 2017, President Donald J. Trump signed an executive order establishing the Presidential Advisory Commission on Election Integrity (PACEI), with the mission to “study the registration and voting processes used in Federal elections.” Pursuant to this mission, Vice Chair of the Commission, Kansas Secretary of State Kris Kobach, sent out letters to state election officials soliciting all “publicly available voter roll data,” including all registrants’ full first and last names, middle names or initials, addresses, dates of birth, political party, last four digits of Social Security numbers if available, voter history from 2006 onward, information regarding any felony …

Candidate Privacy, Rebecca Green

Faculty Publications

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

Standing To Challenge Familial Searches Of Commercial Dna Databases, Hillary L. Kody

William & Mary Law Review

In April 2018, police officers arrested Joseph James DeAngelo. DeAngelo, the officers claimed, was the “Golden State Killer,” a man who committed dozens of murders and over fifty sexual assaults in California in the 1970s and 1980s. The Golden State Killer had long eluded police, even though his DNA profile linked him to dozens of violent crimes. While law enforcement officials from several jurisdictions in California had collected his DNA from crime scenes, the Golden State Killer’s crimes predated modern DNA analysis. Police found little use for the profile without a suspect’s profile to compare to it.

Nearly forty years …

No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining

William & Mary Journal of Race, Gender, and Social Justice

This Article considers the impact of a hypothetical nonconsensual pornography victim’s previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields—the incremental harm doctrine and rape shield laws—and considers what effect their application would have on the hypothetical victim’s case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of nonconsensual pornography.

Achieving The Goals Of The Value-Based Purchasing Program: Defining A Standard For External Data Use, Svetlana Makoviy

Student Award Winning Papers

In our society, artificial intelligence technology has permeated through every aspect of human life. By the end of 2019, more than 60 million Americans will use some kind of smartwatch, whether a Fitbit or an Apple Watch as a part of their daily routine. Further, over 58% of people currently use a healthcare-related mobile application, such as MyFitnessPal or Nike+ Running. Health and fitness application usage increased by over 330% in the last three years. Unsurprisingly, healthcare-related data is one of the fastest growing and financially valuable data pools in the country, if not worldwide. The volume of data generated …

The Ironic Privacy Act, Margaret Hu

Faculty Publications

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act's reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly …

Bulk Biometric Metadata Collection, Margaret Hu

Faculty Publications

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

The Surveillance Gap: The Harms Of Extreme Privacy And Data Marginalization, Michele Gilman, Rebecca Green

Faculty Publications

We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

William & Mary Bill of Rights Journal

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.

As for ambition, the Court …

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

William & Mary Bill of Rights Journal

This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

William & Mary Bill of Rights Journal

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by …

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Publications

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

When Fame Takes Away The Right To Privacy In One's Body: Revenge Porn And Tort Remedies For Public Figures, Caroline Drinnon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

No abstract provided.