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Full-Text Articles in Law
Loopholes For Circumventing The Constitution: Unrestrained Bulk Surveillance On Americans By Collecting Network Traffic Abroad, Axel Arnbak, Sharon Goldberg
Loopholes For Circumventing The Constitution: Unrestrained Bulk Surveillance On Americans By Collecting Network Traffic Abroad, Axel Arnbak, Sharon Goldberg
Michigan Telecommunications & Technology Law Review
This Article reveals interdependent legal and technical loopholes that the US intelligence community could use to circumvent constitutional and statutory safeguards for Americans. These loopholes involve the collection of Internet traffic on foreign territory, and leave Americans as unprotected as foreigners by current United States (US) surveillance laws. This Article will also describe how modern Internet protocols can be manipulated to deliberately divert American’s traffic abroad, where traffic can then be collected under a more permissive legal regime (Executive Order 12333) that is overseen solely by the executive branch of the US government. Although the media has reported on some …
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey
Michigan Telecommunications & Technology Law Review
The third-party doctrine is a long-standing tenant of Fourth Amendment law that allows law enforcement officers to utilize information that was released to a third party without the probable cause required for a traditional search warrant. This has allowed law enforcement agents to use confidential informants, undercover agents, and access bank records of suspected criminals. However, in a digital age where exponentially more information is shared with Internet Service Providers, e-mail hosts, and social media “friends,” the traditional thirdparty doctrine ideas allow law enforcement officers access to a cache of personal information and data with a standard below probable cause. …
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett
Michigan Telecommunications & Technology Law Review
A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …
Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans
Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans
Michigan Telecommunications & Technology Law Review
This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to …
Does Law Matter Online - Empirical Evidence On Privacy Law Compliance, Michael Birnhack, Niva Elkin-Koren
Does Law Matter Online - Empirical Evidence On Privacy Law Compliance, Michael Birnhack, Niva Elkin-Koren
Michigan Telecommunications & Technology Law Review
Does law matter in the information environment? What can we learn from the experience of applying a particular legal regime to the online environment? Informational privacy (or to use the European term, data protection) provides an excellent illustration of the challenges faced by regulators who seek to secure user rights and shape online behavior. A comprehensive study of Israeli website compliance with information privacy regulation in 2003 and 2006 provides insights for understanding these challenges. The study examined the information privacy practices of 1360 active websites, determining the extent to which these sites comply with applicable legal requirements related to …
A Path Toward User Control Of Online Profiling, Tracy A. Steindel
A Path Toward User Control Of Online Profiling, Tracy A. Steindel
Michigan Telecommunications & Technology Law Review
Online profiling is "the practice of tracking information about consumers' interests by monitoring their movements online." A primary purpose of online profiling is to "deliver advertising tailored to the individual's interests," a practice known as online behavioral advertising (OBA). In order to accomplish this, publishers and advertisers track a individual's online behavior using cookies and other means. Publishers and advertisers aggregate the information, often compile it with information from offline sources, and sort individuals into groups based on characteristics such as age, income, and hobbies. Advertisers can then purchase access to these consumer groups, controlling their selections with such specificity …
Legislation For Effective Self-Regulation: A New Approach To Protecting Personal Privacy On The Internet, Richard M. Marsh Jr.
Legislation For Effective Self-Regulation: A New Approach To Protecting Personal Privacy On The Internet, Richard M. Marsh Jr.
Michigan Telecommunications & Technology Law Review
How can we best reap the benefits of online profiling while avoiding the privacy pitfalls plaguing the e-commerce community? Experts advocate legislation, civil litigation, or self-regulation to provide the ideal solution. Analyzing these proposals reveals a conflict between two basic principles: the need to preserve personal privacy and the desire to foster a thriving Internet-based industry. This Note argues that each approach tends to favor one principle at the expense of the other. This Note also proposes a new solution which creates incentives for effective self-regulation backed with legal enforcement. This scheme strikes an appropriate balance between privacy and e-commerce …
'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes
'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes
Michigan Telecommunications & Technology Law Review
The notion of software code replacing legal code as a mechanism to control human behavior--"code as law"--is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of "code as law" on privacy. To what extent is privacy-related "code" being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it …
From The Cluetrain To The Panopticon: Isp Activity Characterization And Control Of Internet Communications, Eric Evans
From The Cluetrain To The Panopticon: Isp Activity Characterization And Control Of Internet Communications, Eric Evans
Michigan Telecommunications & Technology Law Review
If ISPs are exposed to liability for forwarding others' messages--messages originating with other ISPs or with the ISP's own users--the norm of universal mutual message forwarding that underlies the present operation of the Internet will be threatened. This Note will argue that society presently confronts a choice between a common carrier Internet characterized by universal mutual message forwarding and a monitored and controlled Internet. Part I will describe the underlying rules that govern ISPs' liability for their users' actions. Part II will argue that the present statutory regime governing ISPs' liability for users' copyright infringement includes elements that provide ISPs …
The Need For Revisions To The Law Of Wiretapping And Interception Of Email, Robert A. Pikowsky
The Need For Revisions To The Law Of Wiretapping And Interception Of Email, Robert A. Pikowsky
Michigan Telecommunications & Technology Law Review
I argue that a person's privacy interest in his email is the same as his privacy interest in a telephone conversation. Moreover, the privacy interest in email remains unchanged regardless of whether it is intercepted in transmission or covertly accessed from the recipient's mailbox. If one accepts this assumption, it follows that the level of protection against surveillance by law enforcement officers should be the same[...] As technology continues to blur the distinction between wire and electronic communication, it becomes apparent that a new methodology must be developed in order to provide logical and consistent protection to private communications. The …
Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking The Identity Of Anonymous Employee Internet Posters, Margo E. K. Reder, Christine Neylon O'Brien
Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking The Identity Of Anonymous Employee Internet Posters, Margo E. K. Reder, Christine Neylon O'Brien
Michigan Telecommunications & Technology Law Review
Communications systems are now wide open and fully accessible, with no limits in range, scope or geography. Targeted audiences are accessible with pinpoint accuracy. Messages reach millions of readers with one click. There is a chat room for everyone. Most importantly, there is no limit on content. Therefore, employees can register their dissatisfaction by posting a message in a chat room. Moreover, the identity of the posting employee is not easily discoverable due to anonymous and pseudonymous communications capabilities. The nature of these online messages is qualitatively different from real-world communications. By way of example, newspapers have a responsibility regarding …
Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr
Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr
Michigan Telecommunications & Technology Law Review
"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments …
The Emergence Of Website Privacy Norms, Steven A. Hetcher
The Emergence Of Website Privacy Norms, Steven A. Hetcher
Michigan Telecommunications & Technology Law Review
Part I of the Article will first look at the original privacy norms that emerged at the Web's inception in the early 1990s. Two groups have been the main contributors to the emergence of these norms; the thousands of commercial websites on the early Web, on the one hand, and the millions of users of the early Web, on the other hand. The main structural feature of these norms was that websites benefitted through the largely unrestricted collection of personal data while consumers suffered injury due to the degradation of their personal privacy from this data collection. In other words, …
Criminalization Of True Anonymity In Cyberspace, The, George F. Du Pont
Criminalization Of True Anonymity In Cyberspace, The, George F. Du Pont
Michigan Telecommunications & Technology Law Review
The question of whether a state or the federal government can create a narrowly tailored restriction on cyberspace anonymity without violating the First Amendment remains unresolved[...]The Supreme Court has not directly addressed the issue, but it may soon consider the constitutionality of criminalizing certain kinds of cyber-anonymity in light of the unique nature of cyberspace. This comment explores the various forms of anonymity, examines the First Amendment status of anonymity in and outside of cyberspace, analyzes relevant scholarly commentary, and concludes that a narrowly tailored legislative restriction on "true" anonymity in cyberspace would not violate the First Amendment.
Establishing A Legitimate Expectation Of Privacy In Clickstream Data, Gavin Skok
Establishing A Legitimate Expectation Of Privacy In Clickstream Data, Gavin Skok
Michigan Telecommunications & Technology Law Review
This Article argues that Web users should enjoy a legitimate expectation of privacy in clickstream data. Fourth Amendment jurisprudence as developed over the last half-century does not support an expectation of privacy. However, reference to the history of the Fourth Amendment and the intent of its drafters reveals that government investigation and monitoring of clickstream data is precisely the type of activity the Framers sought to limit. Courts must update outdated methods of expectation of privacy analysis to address the unique challenges posed by the Internet in order to fulfill the Amendment's purpose. Part I provides an overview of the …
Building A Community Through Workplace E-Mail: The New Privacy Frontier, Peter Schnaitman
Building A Community Through Workplace E-Mail: The New Privacy Frontier, Peter Schnaitman
Michigan Telecommunications & Technology Law Review
The relatively new technology of electronic mail (e-mail) presents an entirely new issue of workplace privacy. Currently, whether a person has a privacy interest in their workplace e-mail communications is as unsettled an issue as it has been since the technology emerged in the early part of this decade as the preferred mode of communication in the workplace. Indeed, e-mail may soon be the preferred mode of communication in general. This comment will argue that all e-mail users have a privacy interest in workplace e-mail communications and that the current law does not afford e-mail users any type of protection …