Privacy Law Commons^™

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Privacy Or Safety? The Use Of Cameras To Combat Special Ed Abuse, Sarah M. Benites

University of Massachusetts Law Review

Self-contained classroom students face abuse from educators at disproportionate rates compared to general education students. To combat the abuse, several jurisdictions, including Massachusetts, have proposed or enacted bills enabling cameras to be placed in self-contained classrooms. This has sparked privacy concerns, particularly regarding whether the usage would amount to an infringement on the Fourth Amendment rights of students and educators. This note argues that surveillance is an ineffective deterrent to prevent violent and abusive behavior and should not justify bypassing potential privacy and constitutional violations. It outlines the relevant case law regarding students and teachers and apply these standards to …

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Covid-19: The Federal Government, Federalism, South Dakota, And American Indians, Jordan Janson

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This essay assesses the roles of the federal government and its relationship with Tribal Regions and states alike. Additionally, how COVID-19 affected states and localities and how different Presidential Administrations handled and responded to the pandemic while being compared with the state of South Dakota. Assessing whether or not the federal government overstepped reveals the preparedness of states. Certain states handled COVID-19-related issues better than others, and this essay addresses how Tribal Regions in states provided Governors with extreme complexities. Finally, this essay delves into the rights and responsibilities of the federal government and the state pertaining to American Indian …

The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson

Pepperdine Law Review

The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …

Barcoding Bodies: Rfid Technology And The Perils Of E-Carceration, Jackson Samples

Duke Law & Technology Review

Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment.

National Security And Federalizing Data Privacy Infrastructure For Ai Governance, Margaret Hu, Eliott Behar, Davi Ottenheimer

Fordham Law Review

This Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure …

Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran

Catholic University Law Review

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …

Children Seen But Not Heard, Stacey B. Steinberg

UF Law Faculty Publications

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children’s upbringing with few exceptions. The principle governing this norm is that parents know best and will use their better knowledge to protect their children’s welfare.

The COVID-19 pandemic, public school rules, and children’s privacy laws offer modern examples of regulations in which the interests of parents and children may not align. Minors may want access to vaccines, despite a parent’s refusal to sign a consent form. Minors may want to talk to their …

Content Moderation And The Least Cost Avoider, Paul Rosenzweig

Joint PIJIP/TLS Research Paper Series

No abstract provided.

The Lack Of Responsibility Of Higher Educaiton Institutions In Addressing Phishing Emails And Data Breaches, Muxuan (Muriel) Wang

Duke Law & Technology Review

Higher education institutions (HEIs) are highly susceptible to cyberattacks, particularly those facilitated through phishing, due to the substantial volume of confidential student and staff data and valuable research information they hold. Despite federal legislations focusing on bolstering cybersecurity for critical institutions handling medical and financial data, HEIs have not received similar attention. This Note examines the minimal obligations imposed on HEIs by existing federal and state statutes concerning data breaches, the absence of requirements for HEIs to educate employees and students about phishing attacks, and potential strategies to improve student protection against data breaches.

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner

Brooklyn Law Review

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my …

Critical Data Theory, Margaret Hu

William & Mary Law Review

Critical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in …

The Consumer Bundle, Shelly Kreiczer-Levy

Washington Law Review

Can property law have a consumer protection purpose? One of the most important consumer law concerns today is the limited control consumers have over the digital assets and software-embedded products they purchase. Current proposals for reform focus on classifying the transaction as either license or sale and rely mostly on contract law and consumer protection regulation with a few calls for restoring ownership rights. This Article argues that property law can protect consumers by establishing a minimum bundle of rights for consumers: the “consumer’s bundle.” Working with property theory and an analysis of property values, this Article explains the importance …

The Kids Are Not Alright: Negative Consequences Of Student Device And Account Surveillance, Ashley Peterson

Washington Law Review

In recent years, student surveillance has rapidly grown. As schools have experimented with new technologies, transitioned to remote and hybrid instruction, and faced pressure to protect student safety, they have increased surveillance of school accounts and school-issued devices. School surveillance extends beyond school premises to monitor student activities that occur off-campus. It reaches students’ most intimate data and spaces, including things students likely believe are private: internet searches, emails, and messages. This Comment focuses on the problems associated with off-campus surveillance of school accounts and school-issued devices, including chilling effects that fundamentally alter student behavior, reinforcement of the school-to-prison pipeline, …

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 …

Distinguishing Privacy Law: A Critique Of Privacy As Social Taxonomy, María P. Angel, Ryan Calo

Articles

What distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic …

The Data Heist: Protecting Consumers And Their Information Through Opt-In Consent, John A. Hudson

Arkansas Law Review

This Comment will: (1) compare and contrast the data privacy laws in the United States and the European Union; (2) demonstrate the significant risk American consumers are subject to under the United States’ current laws and regulations; and (3) address the protections provided by the European Union’s explicit opt-in consent requirement that would ensure safer conditions for American consumers.

Privacy Matters: Data Breach Litigation In Japan, Andrew M. Pardieck

Washington International Law Journal

In 1890, when Brandeis and Warren wrote The Right to Privacy, Japan did not have a word for privacy. Today, it is closely guarded in Japan: the European Data Protection Board has found privacy protections in Japan “equivalent” to those in the EU. This research explores the evolution of privacy law in Japan, focusing on data breach and the legal rights and obligations associated with it. The writing is broken up into two parts: This article discusses private enforcement of privacy norms, as it is the courts that first established and continue to define privacy rights in Japan. A separate …