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Full-Text Articles in Privacy Law
Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin
Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin
Washington Law Review
Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.
Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …
You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue
You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue
Washington Law Review
United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …
Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo
Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo
Washington Law Review
This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …
Revising Reasonableness In The Cloud, Ian Walsh
Revising Reasonableness In The Cloud, Ian Walsh
Washington Law Review
Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …
Privacy Dependencies, Solon Barocas, Karen Levy
Privacy Dependencies, Solon Barocas, Karen Levy
Washington Law Review
This Article offers a comprehensive survey of privacy dependencies—the many ways that our privacy depends on the decisions and disclosures of other people. What we do and what we say can reveal as much about others as it does about ourselves, even when we don’t realize it or when we think we’re sharing information about ourselves alone. We identify three bases upon which our privacy can depend: our social ties, our similarities to others, and our differences from others. In a tie-based dependency, an observer learns about one person by virtue of her social relationships with others—family, friends, or other …
Privacy As Safety, A. Michael Froomkin, Zak Colangelo
Privacy As Safety, A. Michael Froomkin, Zak Colangelo
Washington Law Review
The idea that privacy makes you safer is unjustly neglected: public officials emphasize the dangers of privacy while contemporary privacy theorists acknowledge that privacy may have safety implications but hardly dwell on the point. We argue that this lack of emphasis is a substantive and strategic error and seek to rectify it. This refocusing is particularly timely given the proliferation of new and invasive technologies for the home and for consumer use more generally, not to mention surveillance technologies such as so-called smart cities.
Indeed, we argue—perhaps for the first time in modern conversations about privacy—that in many cases privacy …
Are Privacy And Public Disclossure Compatible?: The Privacy Exemption To Washington's Freedom Of Information Act—In Re Rosier, 105 Wn. 2d 606, 717 P.2d 1353 (1986), Matthew Edwards
Washington Law Review
In 1972, Washington State voters passed Initiative 276, the Public Disclosure Act, by a substantial margin. The initiative contained four measures intended to open up government, including one designed to ensure public access to government-held records. This measure, popularly known as Washington's Freedom of Information Act (FOIA), provides a mechanism by which individuals can access information held by the government, subject to only a few exemptions. One such exemption prevents disclosure which is an "unreasonable invasion" of personal privacy. The Washington Supreme Court greatly expanded the scope of this personal privacy exemption in In re Rosier. Prior to this decision, …
Privacy, Abortion, And Judicial Review: Haunted By The Ghost Of Lochner, Helen Garfield
Privacy, Abortion, And Judicial Review: Haunted By The Ghost Of Lochner, Helen Garfield
Washington Law Review
This article poses the question whether Lochner can finally be laid to rest without repudiating all applications of substantive due process, particularly protection of privacy and autonomy. The answer to that question requires a closer look at Lochner itself, and then at Griswold, Roe, and a few of the cases in between. The answers suggested by Ely, Perry, Choper, and others will then be discussed. Finally, this article will examine the ideas and ideals of the man who first conceived the common law right of privacy, Justice Louis D. Brandeis.
Thinking Clearly About Privacy, Thomas Huff
Thinking Clearly About Privacy, Thomas Huff
Washington Law Review
The purpose of this article is to offer a fresh assessment of the right of privacy. It begins with discussion of the privacy norm, drawing on our ordinary judgments and experiences to clarify and elaborate the interest persons have in privacy. It then reviews some of the Supreme Court's reasoning on privacy, explains the Court's confusions, and proposes a way that we and the Court might think more clearly about these difficult matters.