Privacy Law Commons^™

Moving On From The Ombuds Model For Data Protection In Canada, Teresa Scassa

Canadian Journal of Law and Technology

Both the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act adopt an ombuds model when it comes to addressing complaints by members of the public. This model is also present in other data protection laws, including public sector data protection laws at the provincial level, as well as personal health information protection legislation. The focus of this short paper is the model adopted in PIPEDA and its ongoing suitability. PIPEDA was designed to apply across the full range of private sector actors and is increasingly under strain in the big data society. These factors may make …

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Now You See It, Now You Don't: The Emerging Use Of Ephemeral Messaging Apps By State And Local Government Officials, Kurt J. Starman

Concordia Law Review

Public access to government-related information is essential in a democracy. The public expects state and local governments to function in an open and transparent manner to ensure accountability. All fifty states have adopted statutes that provide public access to government-related information. However, these statutes have not kept pace with changing technology. The emerging use of ephemeral messaging apps by state and local government officials presents an especially difficult problem. Ephemeral messaging apps are typically used on personal electronic devices, such as privately-owned smartphones. Unlike traditional text messages, however, ephemeral messages cannot be stored and subsequently accessed by the public. Rather, …

“Going Dark” – The Challenge Facing Law Enforcement In The 21st Century, James Christie

Economic Crime Forensics Capstones

The role of law enforcement on all levels is to prevent, detect, and investigate criminal activity. A fundamental function of law enforcement is to collect intelligence and evidence to combat criminal and terrorist activity. In numerous instances, intelligence and evidence of criminal activity appear in the form of communications and electronic data. To be effective, law enforcement requires the ability to intercept and access these communications and the electronic data pursuant to legal authority.

The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein

Vanderbilt Law School Faculty Publications

Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations, …

Where To Prosecute Cybercrimes, Jacob T. Wall

Duke Law & Technology Review

Selecting the appropriate venue for a criminal trial has been a matter of constitutional concern since the founding of the country. The issue is thought to be essential to the fair administration of justice and thus public confidence in the criminal justice system. Constitutionally, crimes must be prosecuted in the states and districts in which they were committed. However, the rise of cybercrime has complicated the venue inquiry: cyberspace, the domain of cybercrime, and physical space have become increasingly decoupled. Consequently, under America’s primary but dated cybercrime law, the ideal location for a trial may not be a constitutionally proper …

Privacy Law Disparities Between The United States And The European Union, Brandon Deluca

Honors College Theses

Data is the world’s most valuable resource today. In the 21st century, big data has overtaken the world’s commonly known large industries to become one of the most sought after markets, and companies pay to own this data (The Economist, 2017). Advertisements may have been targeted towards demographics such as race or sex in past years. However, in the digital age, the capability exists to push advertisements to the screens of specific users with known interests. This has been made possible, in part, by unregulated data collection practices across the globe, including in the United States and the European Union. …

Protecting Personal Data: A Model Data Security And Breach Notifications Statute, Michael Bloom

St. John's Law Review

(Excerpt)

This Note argues that current law is inadequate to protect consumers in light of the prevalence and severity of data breaches in recent years, and that a unifying federal legislation combining portions of state law and the DSBNA should be enacted. Part I of this Note analyzes the DSBNA for notification requirements when data breaches occur, the requirements for the implementation of security policies, regulatory mechanisms for monitoring compliance with these requirements, and criminal penalties for failing to comply. Part II summarizes the various state laws that exist for notification of data breaches. Part III proposes a model federal …

Mugshots And The Press-Privacy Dilemma, Amy Gajda

Faculty Scholarship

No abstract provided.

Mission Creep And Wiretap Act 'Super Warrants': A Cautionary Tale, Jennifer S. Granick, Patrick Toomey, Naomi Gilens, Daniel Yadron Jr.

Loyola of Los Angeles Law Review

Congress enacted the Wiretap Act in 1968 in an effort to combat organized crime while safeguarding the privacy of innocent Americans. However, the Act instead served to legitimize wiretapping, and its privacy protections have eroded over time. As a result, there has been a significant increase in wiretapping in the decades since the Act’s passage. As technology evolves, the Wiretap Act does less to protect Americans’ private communications from government interception. Nevertheless, policy makers see the Wiretap Act, with its “super-warrant” procedures, as the gold standard for statutory privacy protection. To the contrary, when considering how to regulate new and …

Recent Privacy Law Developments With Major Implications For Medical And Scientific Research, John M. Conley

North Carolina Journal of Law & Technology

No abstract provided.

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

Gender Equality And The First Amendment: Foreword, Jeanmarie Fenrich, Benjamin C. Zipursky, Danielle Keats Citron

Fordham Law Review

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was …

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

American Courts And The Sex Blind Spot: Legitimacy And Representation, Michele Goodwin, Mariah Lindsay

Fordham Law Review

We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (visà-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, …

Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann

Fordham Law Review

New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts …

Keep Your Friends Close And Your Medical Records Closer: Defining The Extent To Which A Constitutional Right To Informational Privacy Protects Medical Records, Lauren Newman

Journal of Law and Health

The following Article discusses the extent to which the constitutional right to informational privacy protects medical data from improper acquisition or dissemination by state agents. Part I provides background on Whalen v. Roe, the Supreme Court case that has been understood to establish the right to informational privacy. Part I also discusses the variations across the circuit courts as to what medical information is afforded protection by the right. Part II analyzes the well-established approaches adopted by the Second and Third Circuits as they present opposing interpretations of Whalen, one wholly protecting medical information and the other protecting …

When Law Frees Us To Speak, Danielle K. Citron, Jonathon Penney

Faculty Scholarship

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

The Normative Fourth Amendment, Matthew Tokson

Utah Law Faculty Scholarship

For decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those alternatives pose many of the same problems as the current standard.

This Article offers a new theoretical approach for determining the scope of the Fourth Amendment. It develops a normative model of Fourth Amendment searches, one that explicitly addresses the balance between law enforcement effectiveness and citizens’ interests inherent in …