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Articles 1 - 30 of 36
Full-Text Articles in Law
Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro
Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro
University of Miami Law Review
It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.
The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …
The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim
The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim
University of Miami Inter-American Law Review
Genetic information is intimate and telling data warranting privacy in public and private realms. The privacy protections offered in the United States and Canada vastly differ when it comes to genetic privacy. Search and seizure law mirrors the privacy gap in the countries, as well as their treatment of DNA database information.
This note explores the foreshadowing of the creation of genetic privacy laws and their varying levels of protection based on the way private information was treated by state actors through search and seizure caselaw, the creation of legal precedent, and the treatment of intimate personal data in the …
Investing In Human Futures: How Big Tech And Social Media Giants Abuse Privacy And Manipulate Consumerism, Brett Dembrow
Investing In Human Futures: How Big Tech And Social Media Giants Abuse Privacy And Manipulate Consumerism, Brett Dembrow
University of Miami Business Law Review
Social media companies such as Facebook, Twitter, and Instagram originated with one seemingly innocent goal: “to bring the world closer together.”1 Now, these Big Tech giants own and operate some of the most powerful platforms in the world simply because of their unethical yet effective strategies to maintain their users’ attention. Social media companies have monetized the amount of time their users spend on their platforms by honing in on the individual preferences of each user and selling that access to advertisers. This heightened access to potential consumers and their preferences has become the most valuable marketing tool for digital …
Big Data, Both Friend And Foe: The Intersection Of Privacy And Trade On The Transatlantic Stage, Gabrielle C. Craft
Big Data, Both Friend And Foe: The Intersection Of Privacy And Trade On The Transatlantic Stage, Gabrielle C. Craft
University of Miami International and Comparative Law Review
This Note analyzes the data privacy protection initiatives implemented by the European Union and the United States and their effects on international trade. As technology develops, the feasibility of data collection increases, allowing for the collecting of inconceivable amounts of data information. Consequently, this data includes personal information, thus implicating privacy concerns and the need for data privacy protection regulations. Data privacy focuses on the use and governance of personal data and how the data is gathered, collected, and stored. In 2018, the European Union enacted the General Data Protection Regulation (GDPR), which sets out highly stringent standards for how …
Family Secrets And Relational Privacy: Protecting Not-So-Personal, Sensitive Information From Public Disclosure, J. Lyn Entrikin
Family Secrets And Relational Privacy: Protecting Not-So-Personal, Sensitive Information From Public Disclosure, J. Lyn Entrikin
University of Miami Law Review
This Article seeks to map contemporary relational privacy issues in the context of the evolving “right of privacy” in the United States. Generally, the Article explains why the so-called “personal” right of informational privacy, whatever its legal foundations, cannot be realistically confined to an individual right given the dramatic scientific and technological developments in the twenty-first century. In particular, the Article proposes that both state and federal law must grapple with the inherently relational nature of privacy interests with respect to DNA profiles, which inherently implicate the privacy interests of one’s biological relatives, whether known or unknown.
Part I summarizes …
Smart Homes: The Next Fourth Amendment Frontier, Christina A. Robinson
Smart Homes: The Next Fourth Amendment Frontier, Christina A. Robinson
University of Miami Race & Social Justice Law Review
Under the third-party search doctrine, an individual does not have a reasonable expectation of privacy in information he or she voluntarily discloses to third parties. “Always on” in-home technology creates recordings of unsuspecting consumers in their most intimate spaces and sends them to third party companies and their affiliates, which makes this information subject to warrantless search by law enforcement under the third- search doctrine. The third-party search doctrine is ill-suited to the digital age, where consumers are routinely required to volunteer information to third parties in order to access digital content. This Note suggests that a warrant should be …
Privacy Protection(Ism): The Latest Wave Of Trade Constraints On Regulatory Autonomy, Svetlana Yakovleva
Privacy Protection(Ism): The Latest Wave Of Trade Constraints On Regulatory Autonomy, Svetlana Yakovleva
University of Miami Law Review
Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning …
Alexa, Amazon Assistant Or Government Informant?, Julia R. Shackleton Esq.
Alexa, Amazon Assistant Or Government Informant?, Julia R. Shackleton Esq.
University of Miami Business Law Review
Alexa, are you listening to me? Technology has become an integral part of one’s everyday life with voice-controlled devices pervading our most intimate interactions and spaces within the home. The answers to our questions are now at our fingertips with the simple roll of the tongue “Alexa,” your very own personal intelligence assistant. This futuristic household tool can perform tasks that range from answering simple voice commands to ordering any online shopping. However, the advent of voice technology presents a myriad of problems. Concerns arise as these new devices live in the privacy of our homes while quietly listening for …
Breaches Within Breaches: The Crossroads Of Erisa Fiduciary Responsibilities And Data Security, Gregg Moran
Breaches Within Breaches: The Crossroads Of Erisa Fiduciary Responsibilities And Data Security, Gregg Moran
University of Miami Law Review
Although the drafters of the Employee Retirement Income Security Act of 1974 (“ERISA”) likely could not have anticipated the data security issues of the twenty-first century, ERISA’s duty of prudence almost certainly requires employee benefit plan fiduciaries to protect sensitive participant data in at least some manner. This Article suggests the Department of Labor should issue a regulation clarifying fiduciaries’ data security obligations. Given that fiduciaries are in the best positions to recognize their plans’ individual security needs and capabilities, the regulation should not attempt to micromanage fiduciaries’ substantive data security policies; rather, it should focus on the procedures by …
The Privacy Hierarchy: A Comparative Analysis Of The Intimate Privacy Protection Act Vs. The Geolocational Privacy And Surveillance Act, Katherine A. Mitchell
The Privacy Hierarchy: A Comparative Analysis Of The Intimate Privacy Protection Act Vs. The Geolocational Privacy And Surveillance Act, Katherine A. Mitchell
University of Miami Law Review
The advent of the technological boom brought the world smartphones, social media, and Siri. These novel benefits, however, were accompanied by unchartered invasions of privacy. Congress has embarked on the seemingly endless path of protecting its constituents through civil and criminal legislation aimed at combatting such invasions. Two recent examples include the Intimate Privacy Protection Act (“IPPA”) and the Geolocational Privacy and Surveillance Act (“GPS Act”). Nonetheless, the IPPA, which was proposed to criminalize the dissemination of nonconsensual pornography, has garnered much less support—and much more criticism—than its geolocational counterpart.
This Note discusses the striking similarities of both bills, both …
Biometric Identification In India Versus The Right To Privacy: Core Constitutional Features, Defining Citizens’ Interests, And The Implications Of Biometric Identification In The United States, Madison Julia Levine
Biometric Identification In India Versus The Right To Privacy: Core Constitutional Features, Defining Citizens’ Interests, And The Implications Of Biometric Identification In The United States, Madison Julia Levine
University of Miami Law Review
In 2009, the Indian government introduced a widespread biometric identification system called Aadhaar—a national scheme that issues Indian citizens and residents a unique identification number while collecting and storing their most personal biometric and demographic information. As the Aadhaar system was implemented and promoted in India, widespread concerns grew regarding the storage and protection of such private information. How can Indian citizens enforce and protect their privacy rights? In 2017, the Indian Supreme Court attempted to address this issue by holding that an individual’s right to privacy is an inherent part of the right to life and personal liberty and …
A Constitutional Hope: An Alternative Approach To The Right Of Privacy And Marijuana Laws Using Argentina As An Example, Kevin E. Szmuc
A Constitutional Hope: An Alternative Approach To The Right Of Privacy And Marijuana Laws Using Argentina As An Example, Kevin E. Szmuc
University of Miami International and Comparative Law Review
No abstract provided.
Privacy Regulation In The Age Of Biometrics That Deal With A New World Order Of Information, Michael Monajemi
Privacy Regulation In The Age Of Biometrics That Deal With A New World Order Of Information, Michael Monajemi
University of Miami International and Comparative Law Review
No abstract provided.
The Struggle To Define Privacy Rights And Liabilities In A Digital World And The Unfortunate Role Of Constitutional Standing, Juan Olano
University of Miami Law Review
Today’s world runs on data. The creation and improvement of technological products and services depend on the exchange of data between people and companies. As people’s lives become more digitized, companies can collect, store, and analyze more data, and in turn, create better technology. But, because consumer data can be very sensitive (think Social Security numbers, GPS location, fingerprint recognition, etc.) this cyclical exchange comes with serious privacy risks; especially in light of more frequent and sophisticated cyberattacks. This creates a face-off between technological growth and privacy rights. While it makes sense that people should be willing to subside some …
Drawing The Line: The Jurisprudence Of Non-Consensual Pornography And The Implications Of Kanye West’S Famous Music Video, Karla Utset
University of Miami Law Review
In June 2016, American rapper Kanye West premiered the music video for Famous from his seventh studio album “The Life of Pablo.” West’s Famous music video, inspired by Vincent Desiderio’s painting Sleep, features nude replications of several celebrities lying together on a bed. The cinematography is voyeuristic, with one journalist describing the video as “predatory.” In making and publicizing the infamous music video, West failed to seek and acquire the consent of several of the individuals featured. The production received both considerable praise and backlash from artists, critics, and the celebrities depicted.
This Note discusses the jurisprudence of non-consensual pornography, …
Disposing With A (Not-So) Blunt Instrument, For Privacy’S Sake, Victoria Ashley Paxton
Disposing With A (Not-So) Blunt Instrument, For Privacy’S Sake, Victoria Ashley Paxton
University of Miami International and Comparative Law Review
No abstract provided.
"Revenge Porn" Reform: A View From The Front Lines, Mary Anne Franks
"Revenge Porn" Reform: A View From The Front Lines, Mary Anne Franks
Articles
The legal and social landscape of "revenge porn" has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the ternm "revenge porn." As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; federal criminal legislation on the issue had been introduced in Congress; Google, Facebook, and Twitter had banned nonconsensual pornography from their platforms; and the term "revenge porn" had been added to the Merriam- Webster Dictionary. I have had the privilege of playing a role in many …
Lessons Learned Too Well: Anonymity In A Time Of Surveillance, A. Michael Froomkin
Lessons Learned Too Well: Anonymity In A Time Of Surveillance, A. Michael Froomkin
Articles
It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity-one of the two most important tools that protect online communicative freedom-is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.
This Article traces …
Democratic Surveillance, Mary Anne Franks
That ‘70s Show: Why The 11th Circuit Was Wrong To Rely On Cases From The 1970s To Decide A Cell-Phone Tracking Case, David Oscar Markus, Nathan Freed Wessler
That ‘70s Show: Why The 11th Circuit Was Wrong To Rely On Cases From The 1970s To Decide A Cell-Phone Tracking Case, David Oscar Markus, Nathan Freed Wessler
University of Miami Law Review
In light of society's increasing reliance on technology, this article explores a critical question – that of the Fourth Amendment’s protection over privacy in the digital age. Specifically, this article addresses how the law currently fails to protect the privacy of one’s cell phone records and its ramifications. By highlighting the antiquated precedent leading up to the Eleventh Circuit’s ruling in United States v. Davis, this article calls on the judiciary to find a more appropriate balance for protecting the right to privacy in a modern society.
Cellphones, Stingrays, And Searches! An Inquiry Into The Legality Of Cellular Location Information, Jeremy H. D'Amico
Cellphones, Stingrays, And Searches! An Inquiry Into The Legality Of Cellular Location Information, Jeremy H. D'Amico
University of Miami Law Review
Can the Fourth Amendment protect an individual’s right privacy by preventing the disclosure of her location through cell site location information? Does it currently? Should it? Many court opinions answer these questions in both the affirmative and the negative. The rationale underlying each conclusion is disparate. Some rely on statutory regimes, others rely on the United States Supreme Court’s interpretation of reasonableness. However, Cell Site Location Information is a technology that requires uniformity in its interpretation. This note investigates the different interpretations of the Fourth Amendment as it relates to Cell Site Location Information. It explains the technology behind Cell …
Confronting Nonconsensual Pornography With Federal Criminalization And A “Notice-And-Takedown” Provision, Dalisi Otero
Confronting Nonconsensual Pornography With Federal Criminalization And A “Notice-And-Takedown” Provision, Dalisi Otero
University of Miami Law Review
The issue of nonconsensual pornography has recently been brought into the limelight because of events like the online postings of celebrities’ intimate photos. Non-celebrities, however, have been victimized in this way since long before the recent hackings, and their lives are also changed in the worst possible way. The harms that result from the unconsented-to distribution of an individual’s intimate photos and videos are severe and oftentimes long-lasting. This Comment suggests that an alternative proposal to help nonconsensual pornography victims regain their reputations, their privacy, and their lives, is to federally criminalize the nonconsensual distribution of a person’s intimate images …
Self-Defense Against Robots And Drones, A. Michael Froomkin, P. Zak Colangelo
Self-Defense Against Robots And Drones, A. Michael Froomkin, P. Zak Colangelo
Articles
Robots can pose-or can appear to pose-a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or Peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This Article addresses all those issues and one more. what rules and standards we could put into place to make the resolution of those questions easier and …
Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin
Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin
Articles
Encroachments on privacy through mass surveillance greatly resemble the pollution crisis in that they can be understood as imposing an externality on the surveilled. This Article argues that this resemblance also suggests a solution: requiring those conducting mass surveillance in and through public spaces to disclose their plans publicly via an updated form of environmental impact statement, thus requiring an impact analysis and triggering a more informed public conversation about privacy. The Article first explains how mass surveillance is polluting public privacy and surveys the limited and inadequate doctrinal tools available to respond to mass surveillance technologies. Then, it provides …
From Anonymity To Identification, A. Michael Froomkin
From Anonymity To Identification, A. Michael Froomkin
Articles
This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational …
Legislating Our Reasonable Expectations: Making The Case For A Statutory Framework To Protect Workplace Privacy In The Age Of Social Media, David Miller
University of Miami Business Law Review
No abstract provided.
The Fourth Amendment In The Information Age, Ricardo J. Bascuas
The Fourth Amendment In The Information Age, Ricardo J. Bascuas
Articles
In 2013, the Supreme Court tacitly conceded that the expectations-of-privacy test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never despite widespread agreement to the contrary been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the expectations-of-privacy test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the expectations-of-privacy test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private …
"Pets Must Be On A Leash": How U.S. Law (And Industry Practice) Often Undermines And Even Forbids Valuable Privacy Enhancing Technology, A. Michael Froomkin
"Pets Must Be On A Leash": How U.S. Law (And Industry Practice) Often Undermines And Even Forbids Valuable Privacy Enhancing Technology, A. Michael Froomkin
Articles
No abstract provided.
Hard To Believe: The High Cost Of A Biometric Identity Card, A. Michael Froomkin, Jonathan Weinberg
Hard To Believe: The High Cost Of A Biometric Identity Card, A. Michael Froomkin, Jonathan Weinberg
Short Works
No abstract provided.
Creating A Viral Federal Privacy Standard, A. Michael Froomkin
Creating A Viral Federal Privacy Standard, A. Michael Froomkin
Articles
No abstract provided.