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Articles 1 - 22 of 22
Full-Text Articles in Law
“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield
“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield
Scholarly Articles
This article explores how the need to define privacy has impeded our ability to protect it in law.
The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool …
Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell
Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell
Scholarly Articles
On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a …
#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl
#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl
Scholarly Articles
With limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.
Moreover, the use of social media in tax enforcement may pose a particular harm to an especially vulnerable population: low-income …
Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan
Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan
Scholarly Articles
“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.
This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …
The Ironic Privacy Act, Margaret Hu
The Ironic Privacy Act, Margaret Hu
Scholarly Articles
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 …
Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor
Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor
Scholarly Articles
Smart-city technology is being adopted in cities all around the world to simplify our lives, save us time, ease traffic, improve education, reduce energy usage, and keep us healthy and safe. Its adoption is necessary because of changes that are predicted for urban dwellers over the next three decades; urban population and travel are predicted to increase dramatically and our population is graying, meaning the population will include a much greater number of elderly citizens. As these changes occur, smart-city technology can have a huge impact on public safety, improving the ability of law enforcement to investigate crimes, both with …
Bulk Biometric Metadata Collection, Margaret Hu
Bulk Biometric Metadata Collection, Margaret Hu
Scholarly Articles
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 …
From The National Surveillance State To The Cybersurveillance State, Margaret Hu
From The National Surveillance State To The Cybersurveillance State, Margaret Hu
Scholarly Articles
This article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, …
Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett
Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett
Scholarly Articles
Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.
Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …
The Regulation Of Commercial Profiling — A Comparative Analysis, Indra Spiecker, Olivia Tambou, Paul Bernal, Margaret Hu, Carlos Alberto Molinaro
The Regulation Of Commercial Profiling — A Comparative Analysis, Indra Spiecker, Olivia Tambou, Paul Bernal, Margaret Hu, Carlos Alberto Molinaro
Scholarly Articles
The authors, all data protection experts, discuss the status of the relevant data protection regulatory framework on profiling in the business sector in sev eral countries worldwide, from the constitutional level to some individual regulation including the general attitude towards the topic. The EU perspective is presented on the basis of the present directives as well as the General Data Protection Regulation. The United Kingdom, Germany and France, as three of the largest EU Member States with partly highly differing regulatory approaches represent Member State law. Australia, Brazil and the US regulation exemplify the different integration of data protection standards …
Data Privacy And Inmate Recidivism, Chad Squitieri
Data Privacy And Inmate Recidivism, Chad Squitieri
Scholarly Articles
Private companies are awarded contracts to provide Internet technologies within jails and prisons. These correctional contractors often argue that their services can reduce recidivism rates by, for example, providing inmates with access to video messaging services where inmates can communicate with loved ones who are otherwise unable to travel to communicate in person. A close examination of the privacy policies offered by correctional contractors, however, reveals how efforts to reduce recidivism rates are undermined.
As this Essay will explain, correctional contractors collect sensitive data about inmates and the loved ones with whom they communicate. If this data is stolen or …
Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson
Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson
Scholarly Articles
Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …
Revisiting The American Action For Public Disclosure Of Facts, Brian C. Murchison
Revisiting The American Action For Public Disclosure Of Facts, Brian C. Murchison
Scholarly Articles
None available.
The "Do-Not-Call List" Controversy: A Parable Of Privacy And Speech, Rodney A. Smolla
The "Do-Not-Call List" Controversy: A Parable Of Privacy And Speech, Rodney A. Smolla
Scholarly Articles
None available.
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Scholarly Articles
Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.
A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …
Technology And The Internet: The Impending Destruction Of Privacy By Betrayers, Grudgers, Snoops, Spammers, Corporations And The Media, Clifford S. Fishman
Technology And The Internet: The Impending Destruction Of Privacy By Betrayers, Grudgers, Snoops, Spammers, Corporations And The Media, Clifford S. Fishman
Scholarly Articles
This Article reviews how the Internet and related developments-technological, social, and legal-have magnified the threat to privacy posed by private individuals, commercial enterprises, and the media. It offers a brief overview of the current threats to privacy from sources other than the government, and, in particular, the impact of the Internet in creating or magnifying those threats. Part I discusses the threat to privacy in general, examining how the Internet and developments in surveillance technology, in information storage and retrieval, in dissemination of information, sound, and images, and changes to the informal "social contract" that defines general standards have all …
The Ninth Circuit’S Invasion Of The Tort Of Invasion Of Privacy, Harvey L. Zuckman
The Ninth Circuit’S Invasion Of The Tort Of Invasion Of Privacy, Harvey L. Zuckman
Scholarly Articles
The tort of invasion of privacy has had a short but tortuous development made even more tortuous by a number of recent rulings by the United States Court of Appeals for the Ninth Circuit. This common law tort does not begin with the normal judicial iterations that created and sculpted other torts. Rather, it began life as a law review article prompted by personal pique.
Accounting For The Slow Growth Of American Privacy Law, Rodney A. Smolla
Accounting For The Slow Growth Of American Privacy Law, Rodney A. Smolla
Scholarly Articles
Not available.
Privacy And The First Amendment Right To Gather News, Rodney A. Smolla
Privacy And The First Amendment Right To Gather News, Rodney A. Smolla
Scholarly Articles
Not available.
The American Torts Of Invasion Of Privacy: Substantial Corruption Of English Common Law, Harvey L. Zuckman
The American Torts Of Invasion Of Privacy: Substantial Corruption Of English Common Law, Harvey L. Zuckman
Scholarly Articles
No abstract provided.
Invasion Of Privacy: Some Communicative Torts Whose Time Has Gone, Harvey L. Zuckman
Invasion Of Privacy: Some Communicative Torts Whose Time Has Gone, Harvey L. Zuckman
Scholarly Articles
Because invasion of privacy developed from a late nineteenth century law review article motivated in large part by personal animus against the "yellow" press of the era rather than through traditional incremental common-law decision making, and because it has no central trunk but rather four disparate branches whose supposedly protected interests are subject to debate,' this complex of torts presents numerous operational problems for our judicial system. Constitutional problems are created as well by the generation of tension if not direct conflict with first amendment interests when civil liability is imposed for certain kinds of communication. And if all this …
The Interception Of Communications Without A Court Order: Title Iii, Consent, And The Expectation Of Privacy, Clifford S. Fishman
The Interception Of Communications Without A Court Order: Title Iii, Consent, And The Expectation Of Privacy, Clifford S. Fishman
Scholarly Articles
No abstract provided.