Privacy Law Commons^™

Data Autonomy, Cesare Fracassi, William Magnuson

Vanderbilt Law Review

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, …

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

Data Imperialism: The Gdpr's Disastrous Impact On Africa's E-Commerce Markets, Cara Mannion

Vanderbilt Journal of Transnational Law

The European Union (EU) recently passed the General Data Protection Regulation--a sweeping regulatory framework that sets a new global standard for the collection, storage, and use of personal data. To ensure far-reaching compliance with the GDPR, the EU has adopted a strict take-it-or-leave-it approach--countries that wish to engage with digital users in the EU must either comply with the GDPR's expansive data obligations or risk losing access to the world's largest trading block.

This presents significant obstacles for several African nations. Notably, no African country currently has domestic laws that comply with the GDPR. Even if they did, several African …

Flagging The Middle Ground Of The Right To Be Forgotten: Combatting Old News With Search Engine Flags, Hannah L. Cook

Vanderbilt Journal of Entertainment & Technology Law

Incomplete and outdated news articles present an increasing problem for individuals who find themselves stigmatized on the basis of truthful but misleading reports. This Article proposes a moderate solution between the European right to be forgotten and the protectionless status quo in the United States. It proposes a flagging system, administered through Federal Trade Commission adjudications, where links to articles whose private harms outweigh their public benefits are flagged in the search results of an individual. This flag will help combat psychological biases that may cause decisionmakers to place an irrational weight on these articles while preserving the ability of …

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Vanderbilt Journal of Entertainment & Technology Law

It has long been discussed whether individuals should have a "right to be forgotten" online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v. Agencia Espafiola de Proteccion de Datos, the Court of Justice of the European Union (CJEU) addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results in searches made on the basis of their name. It found that they do have this right--which can be best described as …

Who Is Reading Whom Now: Privacy In Education From Books To Moocs, Jules Polonetsky, Omer Tene

Vanderbilt Journal of Entertainment & Technology Law

This Article is the most comprehensive study to date of the policy issues and privacy concerns arising from the surge of ed tech innovation. It surveys the burgeoning market of ed tech solutions, which range from free Android and iPhone apps to comprehensive learning management systems and digitized curricula delivered via the Internet. It discusses the deployment of big data analytics by education institutions to enhance student performance, evaluate teachers, improve education techniques, customize programs, and better leverage scarce resources to optimize education results.

This Article seeks to untangle ed tech privacy concerns from the broader policy debates surrounding standardization, …

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …

Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert H. Sloan

Vanderbilt Journal of Entertainment & Technology Law

When you download the free audio recording software from Audacity, you agree that Audacity may collect your information and use it to send you advertising. Billions of such pay-with-data exchanges feed information daily to a massive advertising ecosystem that tailors website advertising as closely as possible to individual interests. The vast majority of consumers want considerably more control over our information. Consumers nonetheless routinely enter pay-with-data exchanges when we visit CNN.com, use Gmail, or visit any of a vast number of other websites. Why? And, what, if anything, should we do about it? We answer both questions by describing pay-with-data …

The Risks Of Taking Facebook At Face Value: Why The Psychology Of Social Networking Should Influence The Evidentiary Relevance Of Facebook Photographs, Kathryn R. Brown

Vanderbilt Journal of Entertainment & Technology Law

Social networking sites in general, and Facebook in particular, have changed the way individuals communicate and express themselves. Facebook users share a multitude of personal information through the website, especially photographs. Additionally, Facebook enables individuals to tailor their online profiles to project a desired persona. However, as social scientists have demonstrated, the image users portray can mislead outside observers. Given the wealth of information available on Facebook, it is no surprise that attorneys often peruse the website for evidence to dispute opponents' claims.

This Note examines the admission and relevance of Facebook photographs offered to prove a litigant's state of …

Google Books: Page By Page, Click By Click, Users Are Reading Away Privacy Rights, Kathleen E. Kubis

Vanderbilt Journal of Entertainment & Technology Law

Google Books will likely become the world's most extensive book and magazine search and browsing resource, library, and bookstore--combined. However, as users necessarily reveal personal identifying information through their book searches and reading habits, this service poses a significant threat to personal privacy.

Because the Google Books Amended Settlement Agreement neglects to meaningfully address user privacy, the only available privacy protections are the limited rights bestowed by the Google Books Privacy Policy and the Google Privacy Policy. Unfortunately, these Privacy Policies protect the interests of Google at the expense of users.

The enactment of federal privacy statutes, which include provisions …

Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison

Vanderbilt Law Review

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …

Two Notions Of Privacy Online, Avner Levin, Patricia S. Abril

Vanderbilt Journal of Entertainment & Technology Law

Users of social networking websites tend to disclose much personal information online yet seem to retain some form of an expectation of privacy. Is this expectation of privacy always unreasonable? How do users of online social networks define their expectations of privacy online?

These questions were the impetus behind an empirical study, the findings of which are presented in this Article. The project, simultaneously conducted in Canada, at Ryerson University, and in the United States, at the University of Miami, consisted of a survey regarding personal information protection and expectations of privacy on online social networks (OSNs). Approximately 2,500 young …

Just Click Submit: The Collection, Dissemination, And Tagging Of Personally Identifying Information, Corey Ciocchetti

Vanderbilt Journal of Entertainment & Technology Law

As the twenty-first century bustles forward, the e-commerce arena becomes an ever more dangerous place. On a daily basis, Websites collect vast amounts of personally identifying information (PHII) and mine it in sophisticated databases to discover consumer trends and desires. This process provides many benefits--such as tailored Web sites and relevant marketing--that few Web surfers would care to do without. However, serious threats lurk in cyberspace and are enhanced by consumers who continue to submit vast amounts of information in a state of relative unawareness. Not wanting to miss out on their Web surfing experience, visitors submit their personal information …

Accommodating Technological Innovation: Identity, Genetic Testing And The Internet, Gaia Bernstein

Vanderbilt Law Review

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I …

Is There Judicial Recourse To Attack Spammers?, Ashley L. Rogers

Vanderbilt Journal of Entertainment & Technology Law

This Note will discuss the issue of non-commercial spam through the prism of a case recently decided by the California Supreme Court, Intel v. Hamidi. Until recently there was no federal regulation for unwanted electronic communication and common law was the only potential solution. Part I of this Note will discuss the nature of spam, focusing on the distinction between commercial e-mail and bulk e-mail and the importance therein. Part II will detail the history and the legal doctrine of trespass as it applies to the Internet. Part III will summarize the case of Intel v. Hamidi as it struggled …

From Subway Stations To The Information Superhighway: Compliance Strategies For Musicians To Avoid The Worldwide Entanglement Of Privacy Laws, Yvenne M. King

Vanderbilt Journal of Entertainment & Technology Law

In light of the fact that operating a website raises many complex legal issues covering numerous areas of law, this Article focuses on one area that musicians, as website owners, should address: their potential liability for third-party claims based upon violation of consumer privacy laws. This Article first discusses the importance for musician website operators of protecting consumers' privacy rights. Second, it addresses the need to establish a "global privacy compliance plan" to limit musicians' legal liabilities. Finally, it explains how musicians can go about creating such a plan by developing "minimum guidelines" and "privacy practices." ... For purposes of …

The Eu Privacy Directive And The Resulting Safe Harbor, Angela Vitale

Vanderbilt Journal of Transnational Law

The rapid growth of the Internet and the importance of international business operations have thrust the issue of Internet privacy into the center of domestic and international political debates. Varying definitions of privacy have led to numerous--often inconsistent--legislative schemes to protect privacy on the Internet. These inconsistencies have made it difficult for companies to penetrate foreign markets and to maintain international operations. Of primary concern to U.S. companies is the EU Privacy Directive. The Directive requires U.S. companies that attempt to interact with potential customers or their own employees in the European Union either to qualify for a "Safe Harbor" …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …