Law Commons^™

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

James Y. Stern

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

21st Century-Style Truth Decay: Deep Fakes And The Challenge For Privacy, Free Expression, And National Security, Robert Chesney, Danielle Keats Citron

Maryland Law Review

No abstract provided.

The Path To Standing: Asserting The Inherent Injury Of The Data Breach, Jennifer M. Joslin

Utah Law Review

Data breaches are on the rise as consumers continue to exchange personally identifiable information for goods and services in sectors from retail to healthcare. In the aftermath of a data breach, it has been difficult for victims of the breach to establish Article III standing to sue in federal courts. The primary hurdle for those seeking a remedy for the theft of their data has been showing that they have suffered an injury-in-fact. Plaintiffs typically assert an injury based on the increased risk of identity theft following a breach. However, courts have divided on whether such an injury satisfies the …

The Genetic Information Nondiscrimination Act At Age 10: Gina’S Controversial Assertion That Data Transparency Protects Privacy And Civil Rights, Barbara J. Evans

William & Mary Law Review

The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person’s health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is …

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 A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr

Seattle University Law Review

This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.

Younger Generations Are Infected By Continuous Socialization To Accept Diminished Privacy: A Global Analysis Of How The United States' Constitutional Doctrine Is A Main Contributor To Eroded Privacy, Tiffany Kim

Indiana Journal of Global Legal Studies

Since the nineteenth century, privacy concerns have increased with the growth of technology. The invention of instantaneous photography, coupled with the enlarged presence of press, was met with concerns of degraded privacy. Society has formed expectations of privacy, but as time passes, those expectations continue to diminish. Younger generations have been socialized to accept lessened levels of privacy in this digitalized world of mass data and connectivity.

Individual privacy expectations vary globally. The construction of China's government and culture produces a lesser expectation of individual privacy than that of the United States. As outlined in the U.S. Constitution, U.S. citizens …

In Defense Of The American Community Survey, Michael Lewyn

Scholarly Works

Discusses policy and constitutional arguments against the ACS, a yearly survey administered by the Census Bureau.

Taking Data, Michael C. Pollack

Faculty Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

Right To Privacy, A Complicated Concept To Review, Ali Alibeigi, Abu Bakar Munir, Md Ershadul Karim

Library Philosophy and Practice (e-journal)

The Concept and definition of the privacy has been changed during the time affecting by different factors. At the same time, the boundaries of privacy may differ from one place to another affecting by the culture, religion, etc. Nonetheless, there is not a unique general accepted definition for the privacy. Privacy has been considered from different disciplines like sociology, psychology, law and philosophy. It is a multidisciplinary domain, having an easy concept but difficult to define. However, by reviewing all different viewpoints, it can be concluded that privacy is an individual tendency, wish and natural need to be away from …

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …

In Defense Of The American Community Survey, Michael Lewyn

Michael E Lewyn