Privacy Law Commons^™

'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes

Michigan Telecommunications & Technology Law Review

The notion of software code replacing legal code as a mechanism to control human behavior--"code as law"--is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of "code as law" on privacy. To what extent is privacy-related "code" being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it …

Unmasking The John Does Of Cyberspace: Surveillance By Private Copyright Owners, Amy Min-Chee Fong

Canadian Journal of Law and Technology

The goals of this paper are to: (1) explore the expectations of cyberspace privacy in a peer-to-peer context; (2) examine the consequences to Internet users arising from the surveillance tactics of private copyright owners; and (3) discuss possible ways in which a balance can be achieved between privacy and intellectual property rights. Part II of this paper sets out the meaning of information privacy, discusses the widespread use of peer-to-peer networks for trading copyrighted content, and examines the expectations of privacy in peer-to-peer networks. Part III discusses the surveillance tactics of private copyright owners, and explains how the surveillance of …

What The Dormouse Said: How The Sixties Counterculture Shaped The Personal Computer By John Markoff (New York: Penguin, 2005), Vaughan Black

Canadian Journal of Law and Technology

What the Dormouse Said is the revisionary back- story of Silicon Valley; in particular, the roots of the current model of human interface with personal com- puters (video screen, keyboard, mouse) and the early stabs at creating the Internet. Markoff is a long-standing hi-tech reporter for the New York Times who, over the past 20 years, has co-written three computer-related books. In Dormouse, his fourth book (but first solo effort), he takes us back to the pre-ironic age — ‘‘the Flintstones era of computers’’ — when batch processing and beatniks still roamed the earth. His claim is that the various …

The Role Of Levies In Canada's Digital Music Marketplace, Jeremy F. Debeer

Canadian Journal of Law and Technology

This paper considers whether such initiatives are a desirable alternative to the current system of exclusive proprietary copyrights. My goal is not to evaluate the nuances of any particular levy scheme or proposal, but to consider the implications of the concept from a specifically Canadian perspective. Despite the generality of the analysis, many of the observations and conclusions about the viability of levy schemes relate to Canada’s actual experiences with its existing private copying levy.

The paper concludes that tariffs or levies on the products and services of third parties are not the best method to support the Canadian music …

Cryptography Export Controls - Canada's Dichotomous Cryptography Policy, Paul Bates

Canadian Journal of Law and Technology

The effort to erect strong legal barriers to trans-national distribution of cryptography has significant gaps because strong cryptography can be obtained and used within Canada without legal restrictions. This paper advocates that Canada should exercise its discretion under the WA to diminish, not fortify, the restrictions of the export control regime.

Legal Restrictions On Transborder Data Flows To Prevent Government Access To Personal Data: Lessons From British Columbia, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Rising Governmental Use Of Biometric Technology: An Analysis Of The United States Visitor And Immigrant Status Indicator Technology Program, Lisa Madelon Campbell

Canadian Journal of Law and Technology

This article explores increased governmental interest in the use of biometric measurements as a means of identifying individuals and tracing their movements. Private industries, of course, are equally interested in biometrics, and often similarly capable of collecting and storing biometric information. For example, merchants in the United Kingdom require customers who pay by cheque to provide a thumbprint as an additional security measure against potential fraud. The issues raised by the use of biometrics in the private sector are somewhat different than those that arise in the public context. This article explores the increased reli- ance upon individual biometric measurements …

I Click, You Click, We All Click - But Do We Have A Contract? A Case Comment On Aspenceri.Com V. Paysystems, Charles Morgan

Canadian Journal of Law and Technology

It is trite to say that e-commerce has exploded over the last several years. Canadian individuals and businesses are entering into thousands and thousands of contracts online all the time. Yet, oddly enough, there is surprisingly little legal certainty or consistency regarding an essential legal question: what approach to online contract formation will create a binding legal contract? Such legal uncertainty is unfortunate, since buyers need to know when to ‘‘beware’’, merchants need to be able to manage risk, and courts need to have clear guidelines in order to be able to render informed, coherent decisions.

The issue of online …

Intelligent Agents: Authors, Makers, And Owners Of Computer-Generated Works In Canadian Copyright Law, Rex M. Shoyama

Canadian Journal of Law and Technology

The central objective of this article is to propose a clarification of copyright law as applied to works created by intelligent agents. In Part I, the concepts of artificial intelligence and intelligent agents are introduced. Part II identifies the challenges that are presented to the tests of originality and authorship in the application of copyright to works generated by intelligent agents. It is argued that works created by intelligent agents may meet the tests of originality and authorship. It is also argued that the con- cepts of ‘‘author’’, ‘‘owner’’, and ‘‘maker’’ are distinct from one another in Canadian copyright law. …

L'Affaire Huntsman C. Soderbergh Ou Le Droit D'Expurger Les Films, René Pépin

Canadian Journal of Law and Technology

Deux éléments nous motivent. D’abord, comme on le devine, la technologie évolue à un rythme rapide en ce domaine. On n’en est plus au temps où les films étaient produits unique- ment sur une véritable pellicule de plastique qu’un censeur pouvait insérer dans une machine qui lui permettait littéralement de couper des parties indésirables et de recoller les embouts. L’informatique a envahi ce domaine. Il y a maintenant des logiciels sophistiqués qui agissent comme interface entre un disque DVD et l’écran, permettant au consommateur de choisir lui-même les séquences qui seront enlevées dans un film. On comprend que ceci pose …

Biotechnology Unglued: Science, Society, And Social Cohesion By Michael D. Mehta, Ed. (Vancouver: Ubc Press, 2005), Chidi Oguamanam

Canadian Journal of Law and Technology

In Biotechnology Unglued, Mehta and his thirteen-member interdisciplinary team, comprising mainly of social scientists using a number of ‘‘case studies’’, explore in nine essays ‘‘how advances in agricultural, medical, and forensic biotechnology may threaten the social cohesiveness of different kinds of communities and at different scales’’. In a way, the project is a successful attempt to underscore the theme of (and imperative for) social accountability of science and bio/technological innovations. This 208-page collection of nine essays in a corresponding number of chapters is a remarkable effort. It is a departure from the traditional concerns regarding biotechnology innovations which, hitherto, emphasized …

Virtual Playgrounds And Buddybots: A Data-Minefield For Tweens, Valerie Steeves, Ian R. Kerr

Canadian Journal of Law and Technology

This article examines the online places where tweens play, chat, and hang out. We argue that the vision behind these places is defined by commercial imperatives that seek to embed surveillance deeper and deeper into children’s playgrounds and social interactions. Online marketers do more than implant branded products into a child’s play; they collect the minute details of a child’s life so they can build a ‘‘relationship’’ of ‘‘trust’’ between the child and brand. Although marketing to children is not new, a networked environment magnifies the effect on a child’s identity because it opens up a child’s private online spaces …

Fundamentals Of Information Technology By Sunny Handa (Markham: Lexisnexis Canada Inc., 2004), Barbara Darby

Canadian Journal of Law and Technology

In the early 1990s, I purchased my first stereo with a CD player. I found myself trapped in a conversation with someone who tried to convince me that it was utter folly not to buy a turntable, because CD technology simply couldn’t replicate the ‘‘warmth’’ of vinyl. Had I only Handa’s book to hand, I could have provided a straight- forward and understandable explanation for why my records were well enough left in my parents’ basement; although ‘‘digitization . . . fails to record all characteristics of analog data, even at the highest finite sampling rate . . . Complete …

No Place To Hide, 24 J. Marshall J. Computer & Info. L. 35 (2005), Robert J. O'Harrow Jr.

UIC John Marshall Journal of Information Technology & Privacy Law

Robert O’Harrow, Jr., a reporter on the financial and investigative team of the Washington Post, recipient of the 2003 Carnegie Melon and Cyber Security Reporting Award, and Pulitzer Prize finalist, lectures on topics from his recent book, No Place to Hide. He discusses how data mining began as a way for marketing companies to gain information about consumers and, as technology evolved, developed into a way for the government to monitor its citizens. O’Harrow contends that since the government is using private companies to collect this data, it skirts regulation and accountability for privacy infringements. After discussing the problems concerning …

The Failure Of The Rule Of Law In Cyberspace?: Reorienting The Normative Debate On Borders And Territorial Sovereignty, 24 J. Marshall J. Computer & Info. L. 1 (2005), H. Brian Holland

UIC John Marshall Journal of Information Technology & Privacy Law

The purpose of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. The article begins by outlining the Johnson-Post-Goldsmith debate which addressed the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. The debate focused primarily on two areas of disagreement: First, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the …

Do We Really Have No Place To Hide?, 24 J. Marshall J. Computer & Info. L. 57 (2005), Matthew Hector

UIC John Marshall Journal of Information Technology & Privacy Law

This article is a book review of No Place to Hide, by Robert O’Harrow. The author begins his analysis of No Place to Hide by addressing concerns raised by O’Harrow regarding the balance between the private data aggregators like ChoicePoint and Acxiom and government investigators in reference to the goal of informational privacy policies. The author then goes into a detailed discussion of O’Harrow’s examination of the reasons for drafting the U.S. Patriot Act. Finally, the author discusses the central issue raised in No Place to Hide, and that is the unlimited ability to access certain information on the Internet …

2005 John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Petitioner, 24 J. Marshall J. Computer & Info. L. 97 (2005), Allyson Bennett, Christina Dallen, David Kestenbaum

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

2005 John Marshall International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 24 J. Marshall J. Computer & Info. L. 69 (2005), Richard C. Balough, Pirya Krishnamoorthy Venkat, Douglas Maclean, Larisa V. Morgan, Michael Rogalski

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

2005 John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For The Respondent, 24 J. Marshall J. Computer & Info. L. 133 (2005), Cherish M. Keller, Elaine Wyder-Harshman

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Law And Order In Cyberspace: A Case Study Of Cyberspace Governance In Hong Kong, 23 J. Marshall J. Computer & Info. L. 249 (2005), Kam C. Wong, Georgiana Wong

UIC John Marshall Journal of Information Technology & Privacy Law

Hong Kong, an international finance center, has been enjoying great benefits generated by computer-mediated communication ("CMC") in the new Information Age. On the other hand with the rapid and advanced development in technology, Hong Kong's economy is increasingly and irreversibly relying, and made dependent upon CMC and the Internet to operate, because the Internet has become a catalyst of reform and development in other arenas including social, cultural, and public policy. The Information Age raises new criminality concerns as it aggregates traditional criminal problems since great amounts of data are transmitted by and stored on computers is beyond imagination and …

Yours For Keeps: Mgm V. Grokster, 23 J. Marshall J. Computer & Info. L. 209 (2005), Max Stul Oppenheimer

UIC John Marshall Journal of Information Technology & Privacy Law

Millions of people download billions of music files over the Internet, using peer-to-peer ("P2P") services such as Grokster, StreamCast, Morpheus, and Kazaa. This practice has been challenged as violative of copyright and, it has been argued, the magnitude of copyright violations facilitated by P2P services justifies banning the services entirely. This argument has been based on the assumption that most transfers over P2P services violate copyright. The starting point for this discussion is the recent decision of the United States Supreme Court to grant the certiorari petition of Metro-Goldwyn-Mayer Studios et al. to review the Ninth Circuit decision in MGM …

The Convention On Cybercrime: A Harmonized Implementation Of International Penal Law: What Prospects For Procedural Due Process?, 23 J. Marshall J. Computer & Info. L. 329 (2005), Miriam F. Miquelon-Weismann

UIC John Marshall Journal of Information Technology & Privacy Law

The CoE Convention on cybercrime provides a treaty-based framework that imposes on the participating nations the obligation to enact legislation criminalizing certain conduct related to computer systems, create investigative procedures and ensure their availability to domestic law enforcement authorities to investigate cybercrime offenses, including procedures to obtain electronic evidence in all of its forms and create a regime of broad international cooperation, including assistance in extradition of fugitives sought for crimes identified under the CoE Convention. Since there is no internationally recognized legal definition of computer crime, this article briefly presents the generally recognized categories of cybercrime and then proceeds …

Foreword, 23 J. Marshall J. Computer & Info. L. 485 (2005), Leslie Ann Reis

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Regulating Minors' Access To Pornography Via The Internet: What Options Do Congress Have Left?, 23 J. Marshall J. Computer & Info. L. 453 (2005), Jacob A. Sosnay

UIC John Marshall Journal of Information Technology & Privacy Law

As with most innovations that have world-altering capabilities, the Internet is not without its very own dark side. This Internet's ugly side represented by are the thousands of Web sites devoted to the procurement and dissemination of pornographic material. Although, undoubtedly, in a free society, people are entitled to have access to such material if they so desire it is also generally accepted there is not only a great need, but an uncompromisable duty to protect minors from, and prevent access to, this potentially harmful imagery. This Comment discusses the several recent attempts made by Congress to regulate the accessibility …

Pennsylvania And Pornography: Cdt V. Pappert Offers A New Approach To Criminal Liability, 23 J. Marshall J. Computer & Info. L. 411 (2005), John Spence

UIC John Marshall Journal of Information Technology & Privacy Law

The rapid expansion of information technology in the past few years has left states and the Federal government struggling desperately to keep up and many of the laws attempting to regulate the Internet and information technology show a lack of understanding how the affected technology actually works and could possibly the growth and distribution of new ideas and inventions even incapacitate the Internet. One area in particular that has been the subject of widespread concern and attention is online pornography, a business that few people only realize just how big it truly is. This article focuses on the recent District …

Age Verification In The 21st Century: Swiping Away Your Privacy, 23 J. Marshall J. Computer & Info. L. 363 (2005), John T. Cross

UIC John Marshall Journal of Information Technology & Privacy Law

Today a lot of private businesses have adopted the practice of driver's license swiping where proof of age or security issues arise. This practice has beneficial uses for both private entities, in identifying underage persons and those with fake identification, and law enforcement. However, the problem arise when the private sector, businesses are not using the information to merely identify underage customers or those with fake identification but store the information encoded on the barcode in a computer database. No federal laws and very few state laws regulate the collection and use of this information while the private sector is …

European Spectrum Management Principles, 23 J. Marshall J. Computer & Info. L. 277 (2005), Patrick S. Ryan

UIC John Marshall Journal of Information Technology & Privacy Law

Any discussion of European policies is a complicated one, in part because the word "Europe" means different things to different people. At the present time, the European Union has expanded to twenty-five countries and more countries may become provisional members within the next years. These countries represent a multitude of cultures, languages, and legal traditions so talking about a "European" approach to a given matter is to risk making inherently flawed generalizations about diverse peoples, cultures, and systems. However, one generalization is rather safe to assert: the traditional regulatory model in Europe has been based on a state-run monopoly structure …

The 2000 Presidential Election Shattered The Myth That Every Vote Is Counted, 23 J. Marshall J. Computer & Info. L. 491 (2005), Richard C. Balough

UIC John Marshall Journal of Information Technology & Privacy Law

A lot of things have changed since the early memories of going into the voting booth, which at that time was the old mechanical machines, and pulled those levers down. It was taught that you have to vote because each vote was going to make a difference, each vote was going to be recorded and tallied. The voting which was done on Election Day, the way one voted was going to affect our democracy. Of course during that time there were also a lot of other things happening that ran counter to this ideal, stories including police intimidation especially in …

"Electronic Voting Rights And The Dmca: Another Blast From The Digital Pirates Or A Final Wake Up Call For Reform?", 23 J. Marshall J. Computer & Info. L. 533 (2005), Doris E. Long

UIC John Marshall Journal of Information Technology & Privacy Law

Electronic voting machines are the new version of pirated music. Like digital music, electronic voting was designed to make voting rights easily available to the masses. However, technology has once again demonstrated how easy it is to circumvent a good idea through better “hacker” technology. In reality, any electronic voting software can be hacked no matter how good the encryption technology protecting it. The issue is not creating a fool-proof anti-circumvention system – an impossible task – but creating the necessary digital safeguards to make circumvention difficult, to make security breaches more readily detectable, and to provide back-up systems to …

Florida's Post 2000 Voting Systems Overhaul: The Road To Perdition, 23 J. Marshall J. Computer & Info. L. 497 (2005), Lida Rodriguez-Taseff

UIC John Marshall Journal of Information Technology & Privacy Law

In early 2001, after the disastrous election of 2000, Florida decided to revamp its voting systems, as well as its elections laws, because it did not want another disaster. The “Electronic Voting Systems Act” (the “Act”), ostensibly modernized Florida’s outdated voting machines by authorizing the use of “electronic and electromechanical voting systems in which votes are registered electronically or are tabulated on automatic tabulating equipment or data processing equipment” prohibiting any apparatus or device “for the piercing of ballots by the voter”. Central to the recount process overhaul was the introduction in Florida of a whole new type of voting …