Law Commons^™

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …

Opaque Notification: A Country-By-Country Review, Lauren Mantel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

The Tesla Meets The Fourth Amendment, Adam M. Gershowitz

BYU Law Review

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly extract …

Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo

Emancipations: A Journal of Critical Social Analysis

Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.

Liberal feminists argued that in …

Artificial Intelligence Tools In Clinical Neuroradiology: Essential Medico-Legal Aspects, Dennis M. Hedderich, Christian Weisstanner, Sofie Van Cauter, Christian Federau, Myriam Edjlali, Alexander Radbruch, Sara Gerke, Sven Haller

Faculty Scholarly Works

Commercial software based on artificial intelligence (AI) is entering clinical practice in neuroradiology. Consequently, medico-legal aspects of using Software as a Medical Device (SaMD) become increasingly important. These medico-legal issues warrant an interdisciplinary approach and may affect the way we work in daily practice. In this article, we seek to address three major topics: medical malpractice liability, regulation of AI-based medical devices, and privacy protection in shared medical imaging data, thereby focusing on the legal frameworks of the European Union and the USA. As many of the presented concepts are very complex and, in part, remain yet unsolved, this article …

Privacy Lost: How The Montana Supreme Court Undercuts The Right Of Privacy, Kevin Frazier

Seattle Journal of Technology, Environmental & Innovation Law

In 1972, Montanans ratified a new constitution that included a “right of privacy.” The plain text of the provision fails to express the intent of the Framers who not only intended to afford Montanans a right, but also to impose a responsibility on the State to continuously and thoroughly examine State practices in light of evolving means of invading residents’ privacy. This intent has gone unrealized despite the fact that the intent of the Framers is clear, readily available, and the primary source state courts ought to use when interpreting the Constitution. This article delves into the transcripts of the …

From Hashtag To Hash Value: Using The Hash Value Model To Report Child Sex Abuse Material, Jessica Mcgarvie

Seattle Journal of Technology, Environmental & Innovation Law

In the summer of 2021, Apple announced it would release a Child Safety Feature (CSF) aimed at reducing Child Sex Abuse Materials (CSAM) on its platform. The CSF would scan all images a user uploaded to their iCloud for CSAM, and Apple would report an account with 30 or more flagged images to the National Center for Missing and Exploited Children. Despite Apple’s good intentions, they received intense backlash, with many critics arguing the proposed CSF eroded a user’s privacy. This article explores the technology behind Apple’s CSF and compares it to similar features used by other prominent tech companies. …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 1), Jay Conrad

Seattle Journal of Technology, Environmental & Innovation Law

A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 1) is the first of a two-part series dealing with an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 details the current tactics and impacts of Internet shutdowns and which human rights are most likely to be violated by or during a shutdown. Part 2 will address the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this …

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Aclu V. Clearview Ai, Inc.,, Isra Ahmed

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The Health Care Industry Is Ready For A Revolution: Its Privacy Laws Are Not, Erin Rutherford

Student Scholarship

This paper highlights the costs and benefits associated with the gathering, storing, analyzing, and digitizing of health information; examines current privacy laws and their inadequacies in the new and constantly changing digital health world; and then provides a proposal framework to balance encouraging innovation while protecting individual autonomy. The article specifically proceeds as follows. This paper first discusses of the evolution of the health industry, from paper records to the wide array of sources generating health information today. Next, it considers the benefits to the ever-increasing amount of health information, which, while considerable can often be in tension with privacy …

Consumers' Perceptions Of Digital Privacy In The United States And Japan, Destiny Randle

Whittier Scholars Program

The purpose of my study is to explore the contours of contemporary consumer privacy protections derived from legislation, regulations and publicly available company policies as a way to get a better understanding of how consumer data is protected. A few examples ranging from company-based consumer protection in the United States to data breaches in Japan will be explored and examined. Finally, this paper includes a comparative survey of consumer perceptions and concerns related to personal data privacy in the U.S. and Japan. As a way to assess the degree to which digital privacy and personal data breaches have adversely influenced …

Mainstreaming Unjust Enrichment And Restitution In Data Security Law, Ying Hu

UC Irvine Law Review

This Article seeks to improve enforcement of the duty of companies to safeguard personal data in their possession. It is notoriously difficult for data breach victims to succeed in class actions against companies that failed to take reasonable steps to safeguard their personal data. Many commentators have argued that existing legal rules should be relaxed or applied differently in data breach cases.

This Article argues instead that litigants and the courts should take more seriously unjust enrichment as a cause of action in those cases. The Article makes two main contributions. First, it critically analyzes the two main theories of …

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.

Vanderbilt Law School Faculty Publications

As recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how …

Your Biometric Data Is Concrete, Your Injury Is Imminent And Particularized: Articulating A Bipa Claim To Survive Article Iii Standing After Transunion V. Ramirez, Kelsey L. Kenny

Maine Law Review

Biometric data is a digital translation of self which endures in its accuracy for one’s entire lifespan. As integral elements of modern life continue to transition their operations exclusively online, the verifiable “digital self” has become indispensable. The immutable and sensitive nature of biometric data makes it peculiarly vulnerable to misappropriation and abuse. Yet the most frightening is the unknown. For an individual who has had their digital extension-of-self covertly stolen or leaked, the dangers that lie in the technology of the future are innumerable. The Illinois legislature recognized the danger associated with the cavalier collection and handling of biometric …

Policing The Police: Establishing The Right To Record And Civilian Oversight Boards To Oversee America’S Police, Michael G. Brewster

Brooklyn Law Review

Police misconduct is a persistent issue in the United States that undermines public trust in law enforcement and the criminal justice system as a whole. The video of George Floyd’s arrest and murder played an irreplaceable role in bringing attention to the case and sparking nationwide discussions about the state of policing in America. The video, showing former Minneapolis police officer Derek Chauvin kneeling on Mr. Floyd’s neck for several minutes, also helped convict Mr. Chauvin of murder at trial. Recording police activity is an important means of holding officers accountable for their actions and protecting citizens from abuse of …

About-Face: How Facebook’S Restrictions On User Posts Could Violate Antitrust Law, Efrem Berk

Northwestern Journal of Technology and Intellectual Property

This Note examines whether Facebook’s restrictions on its users’ posts are subject to Sherman Act § 2. This Note looks at the economic activity generated by social media activity and argues that posts are commerce. While this piece finds that current antitrust jurisprudence likely favors Facebook, an alternative approach sought by some antitrust scholars could influence judges to preclude the platform’s restrictions.

Law Informs Code: A Legal Informatics Approach To Aligning Artificial Intelligence With Humans, John J. Nay

Northwestern Journal of Technology and Intellectual Property

Artificial Intelligence (AI) capabilities are rapidly advancing. Highly capable AI could cause radically different futures depending on how it is developed and deployed. We are unable to specify human goals and societal values in a way that reliably directs AI behavior. Specifying the desirability (value) of AI taking a particular action in a particular state of the world is unwieldy beyond a very limited set of state-action-values. The purpose of machine learning is to train on a subset of states and have the resulting agent generalize an ability to choose high value actions in unencountered circumstances. Inevitably, the function ascribing …

Confused About Copyright?, Sara Anne Hook

Graduate Scholarship and Professional Work

No abstract provided.

Do Not Touch My Data: Exploring A Disclosure-Based Framework To Address Data Access, Francis Morency

Washington and Lee Journal of Civil Rights and Social Justice

Companies have too much control over people’s information. In the data marketplace, companies package and sell individuals’ data, and these individuals have little to no bargaining power over the process. Companies may freely buy and sell people’s data in the private sector for targeted marketing and behavior manipulation. In the justice system, an unchecked data marketplace leaves black and brown communities vulnerable to serious data access issues caused by predictive sentencing, for example. Risk assessment algorithms in predictive sentencing rely on data on individuals and run all relevant data points to provide the likelihood that a defendant will recidivate low …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Aadhaar: India’S National Identification System And Consent-Based Privacy Rights, Anvitha S. Yalavarthy

Vanderbilt Journal of Transnational Law

India’s national identification program, Aadhaar, created the largest national biometric database in the world. While the program is touted as voluntary, the increasing dependence on it, and the laws surrounding it, make it de facto mandatory. This Note examines the social and legal landscapes surrounding the Aadhaar program along with the principles of data privacy and biometric data collection in the European Union and the United States to show how those principles can and should apply to the Aadhaar system.

This Note suggests that the way to strengthen the Aadhaar system’s privacy regime is by balancing the principles of necessity …

The Limitations Of Privacy Rights, Daniel J. Solove

Notre Dame Law Review

Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.

In this Article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

When Taint Teams Go Awry: Laundering Unconstitutional Violations Of The Fourth Amendment, Edward S. Adams, William C. Price Jr.

Arkansas Law Review

In this Article, we examine the legal landscape in which taint teams operate, why taint teams are constitutionally problematic, and propose a solution to protect the attorney-client privilege. In Part I, we will first describe what taint teams are supposed to protect—attorney-client privilege. Next, we review how a taint team gets its documents to review, namely the doctrine surrounding (secret) search warrants. Part I ends with a non exhaustive summary of remedies available when attorney-client privilege is violated during searches. In Part II, we explain the current policies and practices surrounding taint teams, including sources of procedure for taint teams …

Surveillance Wages: Private Governing Power And The Future Of Work, Zephyr Teachout

University of St. Thomas Law Journal

No abstract provided.

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

Utah Law Review

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and …

Copyright Throughout A Creative Ai Pipeline, Sancho Mccann

Canadian Journal of Law and Technology

Consider the following fact pattern.

Alex paints some original works on canvas and posts photos of them online. Becca downloads those images and uses them to train an AI (training configures the AI’s model parameters to useful values). Becca posts the resulting trained parameter values on her website under a license that reserves to Becca the right to use the parameters commercially. Cory uses those parameter values in a program that is designed to produce artwork. Cory clicks create and the program produces a work. This work is new to Cory, but it looks a lot like one of Alex’s …