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Articles 1 - 22 of 22
Full-Text Articles in Law
Collective Data Rights And Their Possible Abuse, Asaf Lubin
Collective Data Rights And Their Possible Abuse, Asaf Lubin
Articles by Maurer Faculty
No abstract provided.
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Articles by Maurer Faculty
The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.
Such an approach presupposes that property law is not itself circular. If …
Hacking For Intelligence Collection In The Fight Against Terrorism: Israeli, Comparative, And International Perspectives, Asaf Lubin
Articles by Maurer Faculty
תקציר בעברית: הניסיון של המחוקק הישראלי להביא להסדרה מפורשת של סמכויות השב״כ במרחב הקיברנטי משקף מגמה רחבה יותר הניכרת בעולם לעיגון בחקיקה ראשית של הוראות בדבר פעולות פצחנות מצד גופי ביון ומודיעין ורשויות אכיפת חוק למטרות איסוף מודיעין לשם סיכול עבירות חמורות, ובייחוד עבירות טרור אם בעבר היו פעולות מסוג אלה כפופות לנהלים פנימיים ומסווגים, הרי שהדרישה לשקיפות בעידן שלאחר גילויי אדוארד סנודן מחד והשימוש הנרחב בתקיפות מחשב לביצוע פעולות חיפוש וחקירה לסיכול טרור מאידך, מציפים כעת את הדרישה להסמכה מפורשת. במאמר זה אבקש למפות הן את השדה הטכנולוגי והן את השדה המשפטי בכל האמור בתקיפות מחשבים למטרות ריגול ומעקב. …
A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody L. Madeira
A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody L. Madeira
Articles by Maurer Faculty
No abstract provided.
"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin
Articles by Maurer Faculty
The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …
The Gdpr As A Chance To Break Down Borders, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Nora Ni Loideain
The Gdpr As A Chance To Break Down Borders, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Nora Ni Loideain
Articles by Maurer Faculty
No abstract provided.
Book Review. Balancing Privacy And Free Speech: Unwanted Attention In The Age Of Social Media By Mark Tunick, Kimberly Mattioli
Book Review. Balancing Privacy And Free Speech: Unwanted Attention In The Age Of Social Media By Mark Tunick, Kimberly Mattioli
Articles by Maurer Faculty
No abstract provided.
Online Privacy And The First Amendment: An Opt-In Approach To Data Processing, Joseph A. Tomain
Online Privacy And The First Amendment: An Opt-In Approach To Data Processing, Joseph A. Tomain
Articles by Maurer Faculty
An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment …
Big Business, Big Government And Big Legal Questions, Michael Mattioli, Todd Vare
Big Business, Big Government And Big Legal Questions, Michael Mattioli, Todd Vare
Articles by Maurer Faculty
No abstract provided.
Leap-Ahead Privacy As A Government Responsibility In The Digital Age, David G. Delaney, Ivan K. Fong
Leap-Ahead Privacy As A Government Responsibility In The Digital Age, David G. Delaney, Ivan K. Fong
Articles by Maurer Faculty
No abstract provided.
Access For All: A Review Of “Law Libraries, Government Transparency, And The Internet,” A Presentation By Daniel Schuman Of The Sunlight Foundation At The All-Sis Meeting, July 22, 2012, Susan David Demaine
Access For All: A Review Of “Law Libraries, Government Transparency, And The Internet,” A Presentation By Daniel Schuman Of The Sunlight Foundation At The All-Sis Meeting, July 22, 2012, Susan David Demaine
Articles by Maurer Faculty
Attendees at the ALL-SIS Breakfast and Business Meeting at the AALL Annual Meeting had the pleasure of hearing from Daniel Schuman of the Sunlight Foundation speak on “Law Libraries, Government Transparency, and the Internet.” The Sunlight Foundation is a nonpartisan, nonprofit organization whose mission is to increase access to federal government information resources through advocacy and the development of information technology tools.
Protecting Privacy In Health Research: The Limits Of Individual Choice, Fred H. Cate
Protecting Privacy In Health Research: The Limits Of Individual Choice, Fred H. Cate
Articles by Maurer Faculty
No abstract provided.
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Articles by Maurer Faculty
Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.
In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …
Government Data Mining: The Need For A Legal Framework, Fred H. Cate
Government Data Mining: The Need For A Legal Framework, Fred H. Cate
Articles by Maurer Faculty
The article examines the government's growing appetite for collecting personal data. Often justified on the basis of protecting national security, government data mining programs sweep up data collected through hundreds of regulatory and administrative programs, and combine them with huge datasets obtained from industry. The result is an aggregation of personal data - the "digital footprints" of individual lives - never before seen. These data warehouses are then used to determine who can work and participate in Social Security programs, who can board airplanes and enter government buildings, and who is likely to pose a threat in the future, even …
Three Theories Of Substantive Due Process, Daniel O. Conkle
Three Theories Of Substantive Due Process, Daniel O. Conkle
Articles by Maurer Faculty
Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving …
The Impact Of Opt-In Privacy Rules On Retail Credit Markets: A Case Study Of Mbna, Fred H. Cate, Michael Staten
The Impact Of Opt-In Privacy Rules On Retail Credit Markets: A Case Study Of Mbna, Fred H. Cate, Michael Staten
Articles by Maurer Faculty
U.S. privacy laws are increasingly moving from a presumption that consumers must object to ("opt out" of) uses of personal data they wish to prohibit to a requirement that they must explicitly consent ("opt in") to uses they wish to permit. Despite the growing reliance on opt-in rules, there has been little empirical research on their costs. This Article examines the impact of opt-in on MBNA Corporation, a diversified, multinational financial institution. The authors demonstrate that opt-in would raise account acquisition costs and lower profits, reduce the supply of credit and raise credit card prices, generate more offers to uninterested …
Principles Of Internet Privacy, Fred H. Cate
Principles Of Internet Privacy, Fred H. Cate
Articles by Maurer Faculty
The definition of privacy developed by Brandeis and Warren and Prosser, and effectively codified by Alan Westin in 1967 - the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others - worked well in a world in which most privacy concerns involved physical intrusions (usually by the government) or public disclosures (usually by the media), which, by their very nature, were comparatively rare and usually discovered.
But that definition's exclusive focus on individual control has grown incomplete in a world in which most privacy concerns involve …
The Changing Face Of Privacy Protection In The European Union And The United States, Fred H. Cate
The Changing Face Of Privacy Protection In The European Union And The United States, Fred H. Cate
Articles by Maurer Faculty
Among the wide variety of national and multinational legal regimes for protecting privacy, two dominant models have emerged, reflecting two very different approaches to the control of information. The European Union has enacted a sweeping data protection directive that imposes significant restrictions on most data collection, processing, dissemination, and storage activities, not only within Europe, but throughout the world if the data originates in a member state. The United States has taken a very different approach that extensively regulates government processing of data, while facilitating private, market-based initiatives to address private sector data processing.
Under the EU data protection directive, …
Privacy And Telecommunications, Fred H. Cate
Privacy And Telecommunications, Fred H. Cate
Articles by Maurer Faculty
This article explores the differences in privacy protection between the European Union and the United States, and examines the emerging conflict over data protection. Professor Cate analyzes the European data protection Directive, with particular emphasis on the Directive's extraterritorial provisions. He then examines privacy protection under United States laws and the extent to which that protection satisfies the requirements of the Directive. Finally, Professor Cate focuses on privacy issues involved in telecommunications, an area significantly regulated by United States and European laws, and therefore one area in which some commonality among privacy protection might be anticipated. Even in this highly …
The Eu Data Protection Directive, Information Privacy, And The Public Interest, Fred H. Cate
The Eu Data Protection Directive, Information Privacy, And The Public Interest, Fred H. Cate
Articles by Maurer Faculty
No abstract provided.
Some Queries About Privacy And Constitutional Rights, Michael Grossberg
Some Queries About Privacy And Constitutional Rights, Michael Grossberg
Articles by Maurer Faculty
No abstract provided.
High Technology, The Human Image, And Constitutional Value, Patrick L. Baude
High Technology, The Human Image, And Constitutional Value, Patrick L. Baude
Articles by Maurer Faculty
No abstract provided.