Law Commons^™

The Federal Trade Commission And Privacy: Defining Enforcement And Encouraging The Adoption Of Best Practices., Andrew B. Serwin

Andrew B. Serwin

This article examines the history of privacy enforcement by the Federal Trade Commission, including the FTC’s jurisdiction under Section 5, and its privacy enforcement matters, as well as the FTC's recently issued report, "Protecting Consumer Privacy in an Era of Rapid Change: A proposed Framework for Businesses and Policymakers", in which the FTC examines past enforcement models, noting their failings. In light of the FTC’s examination of past enforcement models, this article then analyzes these models, including the accountability-centric model that has previously been utilized in the United States, as well as the FTC’s proposed solution to the privacy problems …

Genealogy And The Law In Canada 2011, Margaret Ann Wilkinson

Law Presentations

No abstract provided.

The Future Of Privacy, Rebecca Wong Dr

Dr Rebecca Wong

The Art. 29 Working Party (hereinafter “Art. 29 WP”) is an influential body comprised of representatives from the Member State Data Protection Authorities2 established under the Data Protection Directive 95/46/EC, has recently issued an opinion with the Working Party on Police and Justice. This is quite significant, since the opinion sets out some of the issues that will need to be addressed in the lead up to the revision of the Data Protection Directive 95/46/EC.3 This comes at a time, when there have been discussions on the current application of the European Data Protection Directive to the internet,4 (such as …

Cloud Control: Copyright, Global Memes And Privacy, Daniel J. Gervais, Daniel J. Hyndman

Daniel J Gervais

This paper examines the shift from the Internet connection paradigm to an amalgamation paradigm. Ultimately, almost all personal and commercial content will be stored or backed up in the computing Cloud. This is likely to change the way in which copyright is enforced and users' privacy is protected.

Harvey Milk, Jane Roe, And James Brady: The Contribution Of The Civic To The Evolution Of Law, Palma Joy Strand

palma joy strand

The lack of civility in political discourse and asserted negative effects of that lack of civility have recently drawn an increasing amount of popular attention. At the same time, legal scholars have characterized law—especially constitutional law articulated by the Supreme Court—as the result of a dialogue between the Court and the people. This article links these discussions with a unified explanation of how civic discourse among ordinary citizens in the form of personal story-telling and story-listening grounds stable and sustainable law—especially law in areas of evolving social norms. The article uses three contemporary sociolegal movements—gay rights, abortion rights, and gun …

The Mythical Right To Obscurity, Heidi R. Anderson

Heidi R Anderson

In several states, citizens who videotaped police misconduct and distributed the videos via the Internet recently were arrested for violating state wiretapping statutes. These arrests highlight a clash between two key interests—the public’s desire to hold the officers accountable via exposure and the officers’ desire to keep the information private. The arrests also raise an oft-debated privacy law question: When should something done or said in public nevertheless be legally protected as private?

For decades, the answer has been: “There can be no privacy in that which is already public.” However, given recent technological developments (e.g., cell phone cameras and …

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

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 …

A Parent's "Apparent" Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children's Bedrooms, Hillary B. Farber

Faculty Publications

The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between "common" and private areas, and inquire into any agreements - formal or informal - that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance …

The Privacy Bailout: State Government Involvement In The Privacy Arena, Corey A. Ciocchetti

Corey A Ciocchetti

In the midst of massive government involvement in the financial, real estate and automotive sectors, other important problems linger without sufficient governmental attention. This article focuses on one area where federal intervention has been particularly absent - the realm of individual privacy in the Information Age. The problem is that monitoring in the United States is increasingly powerful and takes many forms. Online, prominent Web sites collect, store and disseminate a great deal of personally identifying information (PII) without clearly and simply informing users. This is the case even though such notice is cheap and can be effective. Offline, technology …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

Unraveling Privacy: The Personal Prospectus And The Threat Of A Full-Disclosure Future, Scott R. Peppet

Publications

Information technologies are reducing the costs of credible signaling, just as they have reduced the costs of data mining and economic sorting. The burgeoning informational privacy field has ignored this evolution, leaving it unprepared to deal with the consequences of these new signaling mechanisms. In an economy with robust signaling, those with valuable credentials, clean medical records, and impressive credit scores will want to disclose those traits to receive preferential economic treatment. Others may then find that they must also disclose private information to avoid the negative inferences attached to staying silent. This unraveling effect creates new types of privacy …

"Mosaic Theory" And Megan's Laws, Wayne A. Logan

Scholarly Publications

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational …

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman

Student Articles and Papers

While the world of commercial air transportation has seen major improvements in many technologies over the last decade, nothing has caused a stir quite like the implementation of full-body scanners (FBS) as a one of the first lines of defense in aviation security at U.S. airports. FBS and “enhanced” pat-downs have been the source of much debate and scrutiny among passengers, flight crews, privacy rights groups, and federal authorities in charge of airport screening. The paper begins with a general overview of the law as it pertains to airport searches and privacy rights. In Part II, the technology behind the …

Privacy Implications For Information And Communications Technology (Ict): The Case Of The Jordanian E-Government, Akram Almatarneh

Faculty of Law - Papers (Archive)

Information and Communications Technology (ICT) is one of the fastest growing sectors in Jordan. The importance of ICT cannot be ignored as it affects all aspects of Jordanian society including telecommunications, education, banking, commerce and employment. However, the issue of individual privacy in this sector is a particular challenge as individuals are disclosing large amounts of personal information than ever at a time when there are no specific privacy laws or regulations. This paper identifies this privacy challenge by providing a case study on the electronic government (e-government initiative) in Jordan. The findings of this study are surprising. Despite that …

Pervasive Image Capture And The First Amendment: Memory, Discourse, And The Right To Record, Seth F. Kreimer

University of Pennsylvania Law Review

As digital image technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced and instantly transmitted. We live, relate, work, and decide in an environment in which pervasive image capture from life is routine. During the last half decade, captured images have come to underpin crucial elements of ongoing private and public discourse; digital image capture has become a ubiquitous adjunct to memory and a pervasively accepted mode of connection and correspondence. Digitally captured images precipitate conflicts between government authority and free expression. From efforts to suppress cell phone videos of …

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …

Undermined Norms: The Corrosive Effect Of Information Processing Technology On Informational Privacy, Richard Warner

Saint Louis University Law Journal

No abstract provided.

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Designing Surveillance Law, Patricia L. Bellia

Journal Articles

As communications surveillance techniques become increasingly important in government efforts to detect and thwart criminal and terrorist activities, questions of how to reconcile privacy and law enforcement interests take on paramount importance. These questions have institutional as well as substantive dimensions. That is, the issue is not simply what the limits on communications surveillance should be, but who should set them — courts through application of the Fourth Amendment or legislatures through statutes and the oversight process? The scholarly literature offers divergent positive and normative perspectives on these questions.

For most scholars, the question of who should regulate communications surveillance …

Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard

Oklahoma Law Review

No abstract provided.

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

Privacy Law Fundamentals, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

"Privacy Law Fundamentals" is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases. Included here for download are The Table of Contents and Chapter 1.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government …