Law Commons^™

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

Hired By A Machine: Can A New York City Law Enforce Algorithmic Fairness In Hiring Practices?, Lindsey Fuchs

Fordham Journal of Corporate & Financial Law

Workplace antidiscrimination laws must adapt to address today’s technological realities. If left underregulated, the rapidly expanding role of Artificial Intelligence (“AI”) in hiring practices has the danger of creating new, more obscure modes of discrimination. Companies use these tools to reduce the duration and costs of hiring and potentially attract a larger pool of qualified applicants for their open positions. But how can we guarantee that these hiring tools yield fair outcomes when deployed? These issues are just starting to be addressed at the federal, state, and city levels. This Note tackles whether a new city law can be improved …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

The Rise Of 5g Technology: How Internet Privacy And Protection Of Personal Data Is A Must In An Evolving Digital Landscape, Justin Rabine

Catholic University Journal of Law and Technology

No abstract provided.

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …

Passcodes, Protection, And Legal Practicality: The Necessity Of A Digital Fifth Amendment, Ethan Swierczewski

Catholic University Journal of Law and Technology

No abstract provided.

Cyber-Security, Privacy, And The Covid-19 Attenuation?, Vincent J. Samar

Journal of Legislation

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself …

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

The United States: Big Data, Little Regulation, Megan Valent

University of Miami Business Law Review

In the United States today, there is no single law to address the privacy concerns associated with the collection of consumer data. Lawmakers have introduced policies that seek to address data privacy at the federal level, but Congress has not yet acted to create a comprehensive law to protect consumers. On the contrary, in 2016, the European Union passed its General Data Protection Regulation to address the dangers associated with “Big Data” and to give consumers control over their data.

Unfortunately, in the United States consumers are often unaware of how their data is being handled and what is done …

Modern Privacy Advocacy: An Approach At War With Privacy Itself?, Justin "Gus" Hurwitz, Jamil N. Jaffer

Pepperdine Law Review

This Article argues that the modern concept of privacy itself, particularly as framed by some of its most ardent advocates today, is fundamentally incoherent. The Article highlights that many common arguments made in support of privacy, while initially seeming to protect this critical value, nonetheless undermine it in the long run. Using both recent and older examples of applying classic privacy advocacy positions to key technological innovations, the authors demonstrate how these positions, while seemingly privacy-enhancing at the time, actually resulted in outcomes that were less beneficial for consumers and citizens, including from a purely privacy-focused perspective. As a result, …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

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 …

Identities In Critical Condition: The Urgent Need To Reevaluate The Investigation And Resolution Of Claims Of Medical Identity Theft, Stephanie Lindgren

Mitchell Hamline Law Review

No abstract provided.

Cancelled Credit Cards: Substantial Risk Of Future Injury As A Basis For Standing In Data Breach Cases, Jennifer Wilt

SMU Law Review

No abstract provided.

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …

Social Data Discovery And Proportional Privacy, Agnieszka Mcpeak

Cleveland State Law Review

Social media platforms aggregate large amounts of personal information as "social data" that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns—concerns that should help define the proper scope of discovery.

The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens …

The Sixth Pillar Of Anti-Money Laundering Compliance: Balancing Effective Enforcement With Financial Privacy, Maria A. De Dios

Brooklyn Journal of Corporate, Financial & Commercial Law

The U.S. government has responded to the increase of financial crimes, including money laundering and terrorist financing, by requiring that financial institutions implement anti-money laundering compliance programs within their institutions. Most recently, the Financial Crimes Enforcement Network exercised its regulatory powers, as authorized by the Treasury Department, by proposing regulations that now explicitly add customer due diligence to the preexisting anti-money laundering regime. The policy behind the government’s legislative and regulatory measures is clear—financial institutions must ensure that they are protected from and not aiding in the illegal efforts of criminals. The complexity and insidiousness of these financial crimes makes …

Sacrificing Privacy For Convenience: The Need For Stricter Ftc Regulations In An Age Of Smartphone Surveillance, Ashton Mckinnon

Journal of the National Association of Administrative Law Judiciary

This comment aims to focus on the most frequently used connector that consumers treasure not only for convenience but also as a lifelong necessity - the smartphone. The FTC needs to enforce federally mandated guidelines that will allow the consumer to use technology without the technology using the consumer. Part II of this comment focuses on the type of information that can be collected by various companies, service providers, and agencies from an individual's smartphone, and the intentions of these collectors behind use of this information. Part III evaluates how applications (apps) contribute to this scheme, and, specifically, apps' recordkeeping …

Coding Privacy, Lilian Edwards

Chicago-Kent Law Review

Lawrence Lessig famously and usefully argues that cyberspace is regulated not just by law but also by norms, markets and architecture or "code." His insightful work might also lead the unwary to conclude, however, that code is inherently anti-privacy, and thus that an increasingly digital world must therefore also be increasingly devoid of privacy. This paper argues briefly that since technology is a neutral tool, code can be designed as much to fight for privacy as against it, and that what matters now is to look at what incentivizes the creation of pro- rather than anti-privacy code in the mainstream …

Leave Me Alone! The Delicate Balance Of Privacy And Commercial Speech In The Evolving Do-Not-Call Registry, Andrew L. Sullivant

Federal Communications Law Journal

In 2004, the Tenth Circuit held that although the newly enacted do-not-call registry restricted commercial speech, the restriction was narrowly tailored and thus fell within the bounds of the Constitution. Since that decision, the Federal Trade Commission has amended the do-not-call registry to abolish the provision that required individuals to re-register every five years, and in 2008, Congress passed the amendment. This Note argues that the five-year reregistration requirement is a substantial factor in the registry's narrow tailoring. By removing the requirement, questions as to the restriction's constitutionality reemerge.

Nevada Needs A Privacy Act: How Nevadans Are Particularly At Risk For Identity Theft, Amy S. Scarborough

Nevada Law Journal

No abstract provided.

Indecent Exposures In An Electronic Regime, Natalie L. Regoli

Federal Communications Law Journal

As the topic of data privacy is vast and the subject of much scrutiny, this Comment focuses narrowly on commercial cyber-activities relating to the nonconsensual Internet acquisition of personally identifiable user data. Beginning with a brief examination of the technology that has exacerbated privacy law's inadequacies, it briefly discusses failed attempts to safeguard privacy rights through the market and federal agency management. It then addresses current U.S. privacy legislation and the 1995 European Privacy Directive. Finally, this Comment proposes the creation of a new legislative system to effectively combat the surreptitious collection, storage, use, and sale of personal data.

Protecting Privacy And Enabling Pharmaceutical Sales On The Internet: A Comparative Analysis Of The United States And Canada, Nicole A. Rothstein

Federal Communications Law Journal

The Internet raises enhanced and unique concerns regarding informational health privacy and Internet pharmacy sales. As technology advances and the Internet changes the way people obtain medical services and products, protecting consumers and their informational health data in online pharmaceutical transactions is paramount. This Comment charts and compares the existing legal frameworks in the United States and Canada relative to informational health privacy. Following this discussion, each legal framework comes into sharp focus with regard to Internet pharmacy sales. Ultimately, this Comment concludes that based on the highly sensitive nature of personal medical information, a baseline privacy standard should be …

Privacy Vs. Convenience: The Benefits And Drawbacks Of Tax System Modernization, E. Maria Grace

Federal Communications Law Journal

The Internal Revenue Service has launched the Tax System Modernization (TSM) program, a $23 billion plan to modernize its computer and information systems. TSM will be the largest computer upgrade ever undertaken by the federal government. Like any other computer network, TSM will inevitably be threatened by computer viruses, professional eavesdroppers, power outages, natural disasters, and human error. Given the sensitive nature of tax returns, the IRS has the difficult task of modernizing its data collection procedures and telecommunications facilities without risking the privacy of taxpayers and offending the security measures required by the Privacy Act of 1974, Computer Security …