Privacy Law Commons^™

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …

An Overview Of Canadian Privacy Law For Pharmaceutical And Device Manufacturers Operating In Canada, Erika Lietzan, John K. Fuson

Faculty Publications

On April 13, 2000, the Canadian Parliament enacted by Royal Assent the Personal Information Protection and Electronic Documents Act (PIPEDA). The Act requires private organizations to comply with a code of “fair information practice,” which mandates individual consent for the collection, use, and disclosure of personal information. PIPEDA complements the Federal Privacy Act, which places similar obligations on government institutions. On January 1, 2002, the Act began to apply to personal information (including personal health information) collected, used, or disclosed by a federal work, undertaking, or business, and personal information (including personal health information) disclosed by any organization for consideration …

Human Identification Theory And The Identity Theft Problem, Lynn M. Lopucki

UF Law Faculty Publications

This paper builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with the characteristics of a person observed in a second observation to determine whether they are the same person. From the theory it follows that a characteristic used for identification in the credit reporting system, such as social security number, mother's maiden name and date …

Privacy And Personal Data Protection In The Information Age: A Comparative Evaluation, Emeka B. Obasi

LLM Theses and Essays

The United States and European economies are both information economies, however, they have different approaches in protecting personal information. This study examines in as much detail as possible, the relevant privacy laws in the two economic regions. The Europeans have a comprehensive legislation regulating personal information that vests considerable control on the data subject. Europeans characterize personal data as a fundamental human right. Americans, on the other hand, protect personal information by legislating for specific industries as the need arises and do not recognize privacy of personal information as a fundamental right. This study concludes the European approach is preferable, …

Privacy And The Post-September 11 Immigration Detainees: The Wrong Way To A Right (And Other Wrongs), Sadiq Reza

Articles & Chapters

No abstract provided.

The Emergence Of Website Privacy Norms, Steven A. Hetcher

Michigan Telecommunications & Technology Law Review

Part I of the Article will first look at the original privacy norms that emerged at the Web's inception in the early 1990s. Two groups have been the main contributors to the emergence of these norms; the thousands of commercial websites on the early Web, on the one hand, and the millions of users of the early Web, on the other hand. The main structural feature of these norms was that websites benefitted through the largely unrestricted collection of personal data while consumers suffered injury due to the degradation of their personal privacy from this data collection. In other words, …

Criminalization Of True Anonymity In Cyberspace, The, George F. Du Pont

Michigan Telecommunications & Technology Law Review

The question of whether a state or the federal government can create a narrowly tailored restriction on cyberspace anonymity without violating the First Amendment remains unresolved[...]The Supreme Court has not directly addressed the issue, but it may soon consider the constitutionality of criminalizing certain kinds of cyber-anonymity in light of the unique nature of cyberspace. This comment explores the various forms of anonymity, examines the First Amendment status of anonymity in and outside of cyberspace, analyzes relevant scholarly commentary, and concludes that a narrowly tailored legislative restriction on "true" anonymity in cyberspace would not violate the First Amendment.

The Personal Information Protection And Electronic Documents Act: A Lost Opportunity To Democratize Canada's "Technological Society", Tina Piper

Dalhousie Law Journal

Bill C-6, more recently known as the Personal Information Protection and Electronic Documents Act, is promoted by the Canadian government as privacy legislation to protect Canadians' personal information. This paper explores that characterization and concludes that it is inaccurate and misleading. The problems that motivated a response by Parliament are the proliferation and commercial importance of personal information, concerns Canadians have about its uncontrolled use by the private sector and the inadequacy of existing law to address those concerns. However, the Act has not responded to these problems. There are several reasons for this, primarily the disproportionate and antidemocratic importance …

Establishing A Legitimate Expectation Of Privacy In Clickstream Data, Gavin Skok

Michigan Telecommunications & Technology Law Review

This Article argues that Web users should enjoy a legitimate expectation of privacy in clickstream data. Fourth Amendment jurisprudence as developed over the last half-century does not support an expectation of privacy. However, reference to the history of the Fourth Amendment and the intent of its drafters reveals that government investigation and monitoring of clickstream data is precisely the type of activity the Framers sought to limit. Courts must update outdated methods of expectation of privacy analysis to address the unique challenges posed by the Internet in order to fulfill the Amendment's purpose. Part I provides an overview of the …

2nd Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Carlyle C. Ring, Holly K. Towle, Timothy E. Nielander, John G. Hundley, J. Mark Grundy, Matthew M. Clark, David E. Fleenor, William L. Montague Jr., Jack E. Toliver, Joel T. Beres, Cynthia L. Stewart, Kenneth J. Tuggle, Kenneth R. Sagan, Stephen E. Gillen

Continuing Legal Education Materials

Materials from the 2nd Annual Computer & Technology Law Institute held by UK/CLE in March 2000.

The Death Of Privacy?, A. Michael Froomkin

Articles

The rapid deployment of privacy-destroying technologies by governments and businesses threatens to make informational privacy obsolete. The first part of this article describes a range of current technologies to which the law has yet to respond effectively. These include: routine collection of transactional data, growing automated surveillance in public places, deployment of facial recognition technology and other biometrics, cell-phone tracking, vehicle tracking, satellite monitoring, workplace surveillance, Internet tracking from cookies to "clicktrails", hardware-based identifiers, intellectual property-protecting "snitchware," and sense-enhanced searches that allow observers to see through everything from walls to clothes. The cumulative and reinforcing effect of these technologies may …

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …

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 …

Building A Community Through Workplace E-Mail: The New Privacy Frontier, Peter Schnaitman

Michigan Telecommunications & Technology Law Review

The relatively new technology of electronic mail (e-mail) presents an entirely new issue of workplace privacy. Currently, whether a person has a privacy interest in their workplace e-mail communications is as unsettled an issue as it has been since the technology emerged in the early part of this decade as the preferred mode of communication in the workplace. Indeed, e-mail may soon be the preferred mode of communication in general. This comment will argue that all e-mail users have a privacy interest in workplace e-mail communications and that the current law does not afford e-mail users any type of protection …

Bringing Dignity Back To Light: Publicity Rights And The Eclipse Of The Tort Of Appropriation Of Identity, Jonathan Kahn

Faculty Scholarship

Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation …

The Architecture Of Privacy: Remaking Privacy In Cyberspace, Lawrence Lessig

Vanderbilt Journal of Entertainment & Technology Law

This is an essay about privacy. My aim is to understand privacy through these two very different ideas. Privacy, in the sense that I mean here, can be described by these two different ideas. It stands in competition with these ideas. It is that part of life that is left after one subtracts, as it were, the monitored and the searchable. A life where less is monitored is a life where more is private; and life where less can (legally or technologically) be searched is also a life where more is private. By understanding the technologies of these two different …

Filling The Black Hole Of Cyberspace: Legal Protections For Online Privacy, R. Craig Tolliver

Vanderbilt Journal of Entertainment & Technology Law

The Internet is a unique and wholly new medium of worldwide human communication. This pronouncement of the United States Supreme Court echoes what most of the American population has known for some time. The emergence of cyberspace has dramatically changed the nature of electronic communications, and consumers are conducting online transactions at a tremendous pace. While this revolution has obviously increased the amount and types of information available to American consumers, it has also achieved a different result: businesses now have access to an unprecedented amount of personal information. In turn, there exists a danger that this information will be …

Women And The Internet, Carlin Meyer

Articles & Chapters

No abstract provided.

Anti-Paparazzi Legislation, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Prying, Spying And Lying: Intrusive Newsgather And What The Law Should Do About Them, Lyrissa Lidsky

Faculty Publications

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

The Federal Psychotherapist-Patient Privilege After Jaffee: Truth And Other Values In A Therapeutic Age, Christopher B. Mueller

Publications

No abstract provided.

Logos, Links, And Lending: Towards Standardized Privacy And Use Policies For Banking Web Sites, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Time Enough - Consequences Of Human Microchip Implantation, Elaine M. Ramesh

RISK: Health, Safety & Environment (1990-2002)

Dr. Ramesh argues that microchip implantation is both possible and, for some purposes, desirable and suggests that now is the time to consider strategies for preventing potentially grievous intrusion into personal privacy.

Psychosocial Risks Of Storing And Using Human Tissues In Research, Jon F. Merz

RISK: Health, Safety & Environment (1990-2002)

Dr. Merz argues that genetics technology makes it more compelling that researchers plan more carefully for the collection and disposition of information derived from subjects' tissues and blood.

High-Tech Heroes, Virtual Villians, And Jacked-In Justice: Visions Of Law And Lawyers In Cyberpunk Science Fiction, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Technologically-Assisted Physical Surveillance: The American Bar Association's Tentative Draft Standards, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As the name implies, the American Bar Association's Tentative Draft Standards Concerning Technologically-Assisted Physical Surveillance is a work in progress...Final approval by the ABA hierarchy is still some time away, so feedback could have an impact. Indeed, it is anticipated that the content of at least some of the standards will change prior to their submission to the House of Delegates...The work of the Task Force on Technology and Law Enforcement has persuasively demonstrated that some regulatory structure governing the use of physical surveillance technology is necessary. This work provides a model for future attempts to establish guidelines for other …

Privacy Issues Dealing With Technology : A Review Of The Literature, Kimberly S. Mccoy

Graduate Research Papers

The sophisticated applications of technology are expanding everyday. Unfortunately, so are the many concerns individuals in society are having about their right to privacy. The actual regulations dealing with one's right to privacy has not expand as rapidly as the applications of technology. Individuals using various types of technology are under the assumption their activities are private; however, this is not the case. It does not seem to matter if you are using a computer for communications work, school, or in the "privacy" of your own home, there is absolutely no privacy when dealing with this type of technology.

This …

Piracy, Privacy, And Privitization: Fictional And Legal Approaches To The Electronic Future Of Cash, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Honesty, Privacy, And Shame: When Gay People Talk About Other Gay People To Nongay People, David L. Chambers, Steven K. Homer

Michigan Journal of Gender & Law

There is a longstanding convention among lesbians and gay men in the United States: Do not reveal the sexuality of a gay person to a heterosexual person; unless you are certain that the gay person does not regard his sexuality as a secret. Lie if necessary to protect her secret. Violating the convention by "outing" another person is widely considered a serious social sin.

Sex, Lies, And Genetic Testing: What Are Your Rights To Privacy In Florida?, Jon L. Mills

UF Law Faculty Publications

Individual and human rights in this country have evolved from national movements and national standards. The Fourteenth Amendment's application of rights to the states was a landmark in human rights, guaranteeing all citizens, no matter their state of residence, a baseline of protection. The Federal Constitution was the protector-“states' rights” was the code phrase for discrimination. But in the American crucible of cultural diversity a national standard for “community” may result in the lowest common denominator or a definition based on averaging. Would it not be better when the most individual of rights, privacy, is implicated to define that right …