Privacy Law Commons^™

Confidentiality: An Expectation In Health Care, Anita L. Allen

All Faculty Scholarship

The practice of confidentiality has continued in an era of increased, voluntary openness about medical information in everyday life. Indeed the number and variety of state and federal laws mandating confidentiality by medical professionals has increased in the last dozen years. Moreover, personal injury suits alleging breach of confidentiality or invasion of privacy, along with suits asserting evidentiary privileges, reflect the reality that expectations of confidentiality of medical records and relationships remain strong.

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Faculty Scholarship

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Welfare, Privacy, And Feminism, Michele E. Gilman

University of Baltimore Law Forum

Feminism has long been concerned with privacy. Second-wave feminists assailed the divide between the public and the private spheres that trapped women in the home, excluded them from the workforce, and subjected them to domestic abuse. Second-wave feminists also argued in favor of a sphere of privacy that would allow women to make reproductive choices without state interference. These were powerful critiques of existing power structures, but they tended to overlook the experiences of poor women. As a condition of receiving welfare benefits, poor women have been subjected to drug tests, and they continue to face unannounced home inspections by …

"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie

Vanderbilt Law School Faculty Publications

In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …

Access To Medical Records For Research Purposes: Varying Perceptions Across Research Ethics Boards, Donald Willison, Claudia Emerson, Karen Szala-Meneok, Elaine Gibson, Lisa Schwartz, Karen Weisbaum, François Fournier, Kevin Brazil, Michael Coughlin

Articles, Book Chapters, & Popular Press

Variation across research ethics boards (REBs) in conditions placed on access to medical records for research purposes raises concerns around negative impacts on research quality and on human subject protection, including privacy. Aim: To study variation in REB consent requirements for retrospective chart review and who may have access to the medical record for data abstraction. Methods: Thirty 90-min face-to-face interviews were conducted with REB chairs and administrators affiliated with faculties of medicine in Canadian universities, using structured questions around a case study with open-ended responses. Interviews were recorded, transcribed and coded manually. Results: Fourteen sites (47%) required individual patient …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …

The Fair Use Doctrine And Trackjacking: Beautiful Animal Or Destroyer Of Worlds?, S. Wayne Clemons, Jr.

Vanderbilt Journal of Entertainment & Technology Law

"Trackjacking" is the unauthorized replacement of the original soundtrack of an audiovisual recording, such as a movie or television show, with another that is designed to alter substantially the plot and/or characters of the original work. While trackjacking is a creative and entertaining form of art, it may also constitute copyright infringement if the original work is one that is copyrighted. However, if certain criteria are met, the "fair use" doctrine provides a mechanism for courts to excuse what otherwise would be considered copyright infringement. Because the unique nature of trackjacking allows the new work to be distributed in such …

Six Clicks Of Separation: The Legal Ramifications Of Employers Using Social Networking Sites To Research Applicants, Ian Byrnside

Vanderbilt Journal of Entertainment & Technology Law

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, college students and other job applicants voluntarily divulge an increasing amount of personal information on them, often unaware of the potential negative effects it may have on their search for employment. Employers are beginning to take note of this trend and are increasingly using applicants' social networking profiles to supplement traditional application information. Many applicants feel that employers should not base employment decisions on social networking profiles in any way and believe that it is illegal for employers to do so. Yet, it appears that employers that …

You Are Being Watched: The Need For Notice In Employer Electronic Monitoring, Mindy C. Calisti

Kentucky Law Journal

No abstract provided.

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

Book Review, Susan Nevelow Mart

Publications

No abstract provided.

Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen

All Faculty Scholarship

The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …

Government Data Mining And The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-scale data mining by federal agencies devoted to enforcing criminal and counter-terrorism laws has continued unabated. This paper addresses three puzzles about data mining. First, when data mining is undertaken by the government, does it implicate the Fourth Amendment? Second, does the analysis change when data mining is undertaken by private entities which then …

Rethinking Information Privacy In An Age Of Online Transparency, Robert Sprague

Robert Sprague

No abstract provided.

Orwell Was An Optimist: The Evolution Of Privacy In The United States And Its De-Evolution For American Employees, Robert Sprague

Robert Sprague

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the …