Law Commons^™

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Anonymous Companies, William J. Moon

Faculty Scholarship

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business …

Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …

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.

Cell Phones And The Border Search Exception: Circuits Split Over The Line Between Sovereignty And Privacy, Gina R. Bohannon

Maryland Law Review

No abstract provided.

Automated License Plate Readers: The Difficult Balance Of Solving Crime And Protecting Individual Privacy, Lauren Fash

Maryland Law Review Online

No abstract provided.

Sexual Privacy, Danielle Keats Citron

Faculty Scholarship

Those who wish to control and expose the identities of women and people from marginalized communities routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms, and “up their skirts.” They are coerced into sharing nude photographs and filming sex acts under the threat of public disclosure of their nude images. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep fake” sex videos that swap people’s faces into pornography.

At the heart of these abuses is an invasion of sexual privacy—the behaviors and expectations that manage …

Rule 41 Amendments Provide For A Drastic Expansion Of Government Authority To Conduct Computer Searches And Should Not Have Been Adopted By The Supreme Court, Markus Rauschecker

Maryland Law Review

No abstract provided.

Averting Robot Eyes, Margot E. Kaminski, Matthew Rueben, William D. Smart, Cindy M. Grimm

Maryland Law Review

No abstract provided.

Reviving The Public Trustee Concept And Applying It To Information Privacy Policy, Priscilla M. Regan

Maryland Law Review

No abstract provided.

In Defense Of The Long Privacy Statement, Mike Hintze

Maryland Law Review

No abstract provided.

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Maryland Law Review

No abstract provided.

Small Companies, Big Breaches: Why Current Data Protection Laws Fail American Consumers In Cases Of Third-Party Hacking, Kaylie Gioioso

Proxy

No abstract provided.

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Une Nouvelle Course Aux Armements: Surveillance Des Donnees Informatiques Et Finance Dematerialisee (Big Data, Digital Finance, And The Surveillance Arms Race), Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Continuing Battle Over Privacy Vs. Security, Ellen Cornelius

Homeland Security Publications

No abstract provided.

Spying Inc., Danielle Keats Citron

Faculty Scholarship

The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s calls, texts, snap chats, photos, calendar updates, and movements. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners.

Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, …

Reforming The Law Of Reputation, Frank A. Pasquale

Faculty Scholarship

Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.

As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to …

Privacy, Autonomy, And Internet Platforms, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Interview On The Black Box Society, Lawrence Joseph, Frank A. Pasquale

Faculty Scholarship

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?

Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only …

When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, Steven M. Bellovin, Renée M. Hutchins, Tony Jebara, Sebastian Zimmeck

Faculty Scholarship

Since 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable xpectations of privacy.^[1] An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court has considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” …

Big Data's Other Privacy Problem, James Grimmelmann

Faculty Scholarship

Big Data has not one privacy problem, but two. We are accustomed to talking about surveillance of data subjects. But Big Data also enables disconcertingly close surveillance of its users. The questions we ask of Big Data can be intensely revealing, but, paradoxically, protecting subjects' privacy can require spying on users. Big Data is an ideology of technology, used to justify the centralization of information and power in data barons, pushing both subjects and users into a kind of feudal subordination. This short and polemical essay uses the Bloomberg Terminal scandal as a window to illuminate Big Data's other privacy …

The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale

Faculty Scholarship

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.

Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Frank A. Pasquale, Danielle Keats Citron

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Protecting Health Privacy In An Era Of Big Data Processing And Cloud Computing, Frank A. Pasquale, Tara Adams Ragone

Faculty Scholarship

This Article examines how new technologies generate privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values it is …

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Fouling The First Amendment: Why Colleges Can't, And Shouldn't, Control Student Athletes' Speech On Social Media, Frank D. Lomonte

Journal of Business & Technology Law

No abstract provided.

Policing The Social Media Water Cooler: Recent Nlrb Decisions Should Make Employers Think Twice Before Terminating An Employee For Comments Posted On Social Media Sites, Eric Raphan, Sean Kirby

Journal of Business & Technology Law

No abstract provided.

Maryland's Social Networking Law: No "Friend" To Employers And Employees, Alexander Borman

Journal of Business & Technology Law

No abstract provided.

From Lord Coke To Internet Privacy: The Past, Present, And Future Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract …