Law Commons^™

Authoritarian Privacy, Mark Jia

Georgetown Law Faculty Publications and Other Works

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Borders And Bits, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

Articles

Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

Scholarly Works

In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele

Faculty Publications

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

The European Union sparked an intercontinental furor last year with proposed legislation to supersede the 1995 Data Protection Directive (DPD). The EU Parliament approved legislation in a 49-3 committee vote in October. The text, which is not yet published in its current draft at the time of this writing, may yet be amended before being accepted by the union’s 28 member states. The legislation is billed a money saver because it would harmonize EU member states’ data protection laws, which have diverged under the DPD umbrella. The business community is not convinced, fearful that costly new demands will strain balance …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People's Republic Of China, Ann Bartow

Law Faculty Scholarship

This essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.” Monitoring and censoring communications, especially via “one to many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People’S Republic Of China, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

This Essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.”

Monitoring and censoring communications, especially via “one-to-many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile Internet technologies …

Wto-Compliant Protection Of Fundamental Rights: Lessons From The Eu Privacy Directive, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Nation states often create legislative schemes regulating services industries in order to protect fundamental rights such as human life, economic security, or human security. World Trade Organization members are constrained in their creation of such regulatory schemes by their obligations under the General Agreement on Trade in Services (‘GATS’). WTO members raised concerns about such constraints even before the creation of GATS. As a result, GATS contains clauses specifically designed to allow members enough regulatory latitude to protect important domestic social interests, such as fundamental rights, while simultaneously liberalising trade in services. WTO jurisprudence interpreting these clauses, however, has called …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Anglo-American Privacy And Surveillance, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears …

Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg

Faculty Scholarship

In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …

Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

The global network environment defies traditional regulatory theories and policymaking practices. At present, policymakers and private sector organizations are searching for appropriate regulatory strategies to encourage and channel the global information infrastructure (“GII”). Most attempts to define new rules for the development of the GII rely on disintegrating concepts of territory and sector, while ignoring the new network and technological borders that transcend national boundaries. The GII creates new models and sources for rules. Policy leadership requires a fresh approach to the governance of global networks. Instead of foundering on old concepts, the GII requires a new paradigm for governance …

The Privacy Obstacle Course: Hurding Barriers To Transnational Financial Services, Joel R. Reidenberg

Faculty Scholarship

This article addresses the challenge to transnational financial services resulting from national regulation of information processing. National laws around the world seek to define fair information practices for the private sector and contain prohibitions on data transfers to foreign destinations that lack sufficient privacy protection. The effect of these laws for the financial services industry is significant because financial services depend on personal information. The article argues that the international attempts to harmonize information practice standards and the national efforts to regulate information processing encourage divergence of national standards for financial services. It argues that regulatory flexibility and customization is …