Law Commons^™

The Fight To Frame Privacy, Woodrow Hartzog

Faculty Scholarship

The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that …

The Case For Online Obscurity, Woodrow Hartzog, Frederic Stutzman

Faculty Scholarship

On the Internet, obscure information has a minimal risk of being discovered or understood by unintended recipients. Empirical research demonstrates that Internet users rely on obscurity perhaps more than anything else to protect their privacy. Yet, online obscurity has been largely ignored by courts and lawmakers. In this Article, we argue that obscurity is a critical component of online privacy, but it has not been embraced by courts and lawmakers because it has never been adequately defined or conceptualized. This lack of definition has resulted in the concept of online obscurity being too insubstantial to serve as a helpful guide …

The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green

Faculty Scholarship

This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …

Against Notice Skepticism In Privacy (And Elsewhere), M. Ryan Calo

Articles

What follows is an exploration of innovative new ways to deliver privacy notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of “visceral” notice leverage a consumer’s very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. The thesis of …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle K. Citron, David Gray

Faculty Scholarship

In his insightful article, "The Dangers of Surveillance," 126 Harvard Law Review 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work; we, therefore, recommend that judges, legislators, and executives focus, instead, on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell

All Faculty Scholarship

Does genetic information warrant special legal protection, and if so how should it be protected? This essay examines the most recent (and indeed only) significant effort by the US government to prohibit genetic discrimination, the Genetic Information Nondiscrimination Act (GINA). We argue that the legislation is unlikely to have the positive impact sought by advocates of genetic privacy and proponents of biobanks. In part, GINA disappoints because it does too little. Hailed by its promoters as “the first civil rights act of the 21^st century,” GINA’s reach is in fact quite modest and its grasp even more so. But …

Consumer Subject Review Boards: A Thought Experiment, Ryan Calo

Articles

The adequacy of consumer privacy law in America is a constant topic of debate. The majority position is that United States privacy law is a “patchwork,” that the dominant model of notice and choice has broken down, and that decades of self-regulation have left the fox in charge of the henhouse. A minority position chronicles the sometimes surprising efficacy of our current legal infrastructure.

But the challenges posed by big data to consumer protection feel different. They seem to gesture beyond privacy’s foundations or buzzwords, beyond “fair information practice principles” or “privacy by design.” The challenges of big data may …

Notice And Consent In A World Of Big Data, Fred H. Cate, Viktor Mayer-Schönberger

Articles by Maurer Faculty

• Nowadays individuals are often presented with long and complex privacy notices routinely written by lawyers for lawyers, and are then requested to either ‘consent’ or abandon the use of the desired service.
• The over-use of notice and consent presents increasing challenges in an age of ‘Big Data’.
• These phenomena are receiving attention particularly in the context of the current review of the OECD Privacy Guidelines.
• In 2012 Microsoft sponsored an initiative designed to engage leading regulators, industry executives, public interest advocates, and academic experts in frank discussions about the role of individual control and notice and consent in data protection …

Petitions, Privacy, And Political Obscurity, Rebecca Green

Faculty Publications

People who sign petitions must accept disclosure of their political views. This conclusion rests on the seemingly uncontroversial (if circular) premise that petition signing is a public activity. Courts have thus far shown little sympathy for individuals who take a public stand on an issue by signing a petition and then assert privacy claims after the fact. Democracy, after all, takes courage, as Justice Scalia wrote in the petitioning disclosure case Doe v. Reed. But signing a petition today brings consequences beyond public criticism. The real threat of disclosure for modern petition signers is not tangible harassment, but the loss …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

The Fourth Amendment In The Information Age, Ricardo J. Bascuas

Articles

In 2013, the Supreme Court tacitly conceded that the expectations-of-privacy test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never despite widespread agreement to the contrary been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the expectations-of-privacy test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the expectations-of-privacy test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private …

Supra Synopses, Ryan W. Dumm, Laura Turczanski

Seattle University Law Review Online

No abstract provided.

Privacy Law: Positive Theory And Normative Practice, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Obscurity By Design, Woodrow Hartzog, Frederic D. Stutzman

Faculty Scholarship

Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have left the full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet — social interaction. This Article posits that privacy-protection strategies such as “Privacy by Design” face unique challenges with regard to social software and social technology due to their interactional nature.

This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the …

Prism And Privacy: Will This Change Everything?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Extraterritoriality Of Data Privacy Laws -- An Explosive Issue Yet To Detonate, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Business Of Privacy, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Global Governance In The Information Age: The Terrorist Finance Tracking Program, Hannah Bloch-Wehba

Faculty Scholarship

Europe has long been deemed "more protective" of privacy than the United States. In the context of transatlantic cooperation in the war on terrorism, divergences in privacy law and policy have become ever more apparent. As has always been the case, the same technologies that pose new and vital privacy issues with regard to personal information and private data are those that are important sources for government actors, including law enforcement and intelligence agencies. Despite the increasing reliance by national agencies on information flowing from other nations, regulation of information transfer, processing and sharing has been achieved largely outside of …

Where The Fcra Meets The Fdcpa: The Impact Of Unfair Collection Practices On The Credit Report, Mary B. Spector

Faculty Journal Articles and Book Chapters

This Article explores the impact that contemporary practices in consumer debt collection litigation may have on credit reporting and scoring. In doing so, it pays particular attention to available data regarding the use of unfair collection practices in such litigation, and considers whether consumer reports of such litigation unfairly burden consumers’ ability to obtain housing, employment, insurance, or credit. It highlights some of the obstacles consumers face at the intersection of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act and considers alternative proposals to provide fair and accurate information relating to consumer debts while also preventing …

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 …

An Ethical Duty To Protect One’S Own Information Privacy?, Anita L. Allen

All Faculty Scholarship

People freely disclose vast quantities of personal and personally identifiable information. The central question of this Meador Lecture in Morality is whether they have a moral (or ethical) obligation (or duty) to withhold information about themselves or otherwise to protect information about themselves from disclosure. Moreover, could protecting one’s own information privacy be called for by important moral virtues, as well as obligations or duties? Safeguarding others’ privacy is widely understood to be a responsibility of government, business, and individuals. The “virtue” of fairness and the “duty” or “obligation” of respect for persons arguably ground other-regarding responsibilities of confidentiality and …