Law Commons^™

Data Autonomy, Cesare Fracassi, William Magnuson

Vanderbilt Law Review

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, …

"The New Weapon Of Choice": Law's Current Inability To Properly Address Deepfake Pornography, Anne Pechenik Gieseke

Vanderbilt Law Review

Deepfake technology uses artificial intelligence to realistically manipulate videos by splicing one person’s face onto another’s. While this technology has innocuous usages, some perpetrators have instead used it to create deepfake pornography. These creators use images ripped from social media sites to construct—or request the generation of—a pornographic video showcasing any woman who has shared images of herself online. And while this technology sounds complex enough to be relegated to Hollywood production studios, it is rapidly becoming free and easy-to-use. The implications of deepfake pornography seep into all facets of victims’ lives. Not only does deepfake pornography shatter these victims’ …

The Standing Of Article Iii Standing For Data Breach Litigants: Proposing A Judicial And A Legislative Solution, Devin Urness

Vanderbilt Law Review

Data breaches are not going away. Yet victims still face uncertainty when deciding whether and where to file cases against companies or other institutions that may have mishandled their information. This is especially true if the victims have not yet experienced a financial harm, like identity theft, as a result of a data breach. Much of the uncertainty revolves around the standing doctrine and the Supreme Court’s guidance (or lack thereof) on what constitutes a substantial risk of harm sufficient to establish an injury in fact. Federal circuit courts have come to divergent results in data breach cases based on …

Privative Copyright, Shyamkrishna Balganesh

Vanderbilt Law Review

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory V. Loo

Vanderbilt Law Review

An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history-large platforms such as Amazon, Facebook, and Google-have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state's normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is …

Common Sense: Rethinking The New Common Rule's Week Protections For Human Subjects, Ahsin Azim

Vanderbilt Law Review

Since 1991, the Federal Policy for the Protection of Human Subjects, known as the "Common Rule," has protected the identifiable private information of human subjects who participate in federally funded research initiatives. Although the research landscape has drastically changed since 1991, the Common Rule has remained mostly unchanged since its promulgation. In an effort to modernize the Common Rule, the Federal Policy for the Protection of Human Subjects Final Rule ("Final Rule') was published on January 19, 2017. The Final Rule, however, decreases human-subject protections by increasing access to identifiable data with limited administrative oversight. Accordingly, the Final Rule demands …

Borders And Bits, Jennifer Daskal

Vanderbilt Law Review

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Text Offenders: Privacy, Text Messages, And The Failure Of The Title Iii Minimization Requirement, Seth M. Hyatt

Vanderbilt Law Review

For the past forty years, theory and practice in electronic surveillance have enjoyed an uneasy coexistence. In theory, under ("Title III"), government agents must use wire and electronic taps sparingly, and only under strict judicial supervision. In practice, however, federal courts have recognized countless loopholes and exceptions, leading critics to wonder whether Title III meaningfully limits state investigatory power.

Nowhere is this tension more apparent than in the context of "minimization." Under Title III, government agents conducting electronic surveillance must "minimize the interception of communications not otherwise subject to interception under this chapter." They must not listen in on any …

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Vanderbilt Law Review

The Right to Privacy' and his dissent in Olmstead v. United States. In The Right to Privacy, Brandeis and Samuel Warren argued that intrusion into and public disclosure of private affairs by the press was deeply hurtful, and that the common law should be read to recognize a tort remedy for such violations. Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself. Brandeis is also famous (though less so) for his Olmstead dissent-a document which introduced modern concepts of privacy into constitutional law, and ultimately led not …

Privacy, Accountability, And The Cooperating Defendant: Towards A New Role For Internet Access To Court Records, Caren M. Morrison

Vanderbilt Law Review

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained …

Special Project+ Privacy, Melody R. Barron

Vanderbilt Law Review

Privacy has long been a matter of particular concern in the minds of Americans. Indeed, privacy concerns were at the crux of the American Revolution. The earliest days of colonial life saw creation of laws protecting the individual against eavesdropping, and the sanctity of one's home. The Bill of Rights also reflects privacy interests. As America grew, technological advances in the dissemination of information caused public demands for protection of privacy rights; I Each year, the Vanderbilt Law Review publishes one issue with notes devoted solely to a topic of current interest. These notes collectively constitute the Special Project.

Toothless Hipaa: Searching For A Private Right Of Action To Remedy Privacy Rule Violations, Joshua D.W. Collins

Vanderbilt Law Review

A Midwestern banker, who also served as a member of his county's health board, cross-referenced a health board's list of patients suffering from various diseases with a list of the bank's customers. He then called due the mortgages of anyone suffering from cancer. In Oregon, computer disks containing the medical records of 365,000 patients were stolen from a car. Along with personal medical information, the records also contained the patients' names, addresses, and Social Security numbers. A Maryland school board member's medical records, revealing that he had been treated for depression, were sent to school officials along with an anonymous …

The Revamped Fisa: Striking A Better Balance Between The Government's Need To Protect Itself And The 4th Amendment, J. Christopher Champion

Vanderbilt Law Review

The investigations of the 9/11 terrorist attacks highlighted a series of lapses in intelligence-sharing within the federal government regarding terrorist operations. One area closely examined by Congress,' the judiciary, and many legal and political commentators is the appropriate scope of intelligence collection within the United States "concerning foreign threats to the nation's security" ("foreign intelligence"). Domestic intelligence collection is a particularly complex sphere of national security as gathering intelligence on American soil requires balancing the privacy rights of individuals guaranteed by the Fourth Amendment against the nation's need to protect itself.

The Foreign Intelligence Surveillance Act of 1978 ("FISA") governs …

Accommodating Technological Innovation: Identity, Genetic Testing And The Internet, Gaia Bernstein

Vanderbilt Law Review

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I …

The Emperor Has No Clothes: A Critique Of Applying The European Union Approach To Privacy Regulation In The United States, David R. Nijhawan

Vanderbilt Law Review

Internet users in the United States and the European Union ("EU") often debate the state of international data privacy, while scholars and companies also present questions to the Internet community regarding the regulation of data privacy and the amount of regulation required in the U.S. Inquiries range from how to determine the necessary degree of regulation and how to implement regulations to how to enforce any regulations that the U.S. lawmakers may pass. Historically, the EU and the U.S. approach data privacy regulations in diametrically opposed ways. While the EU relies primarily on legislation and heavy regulation, the U.S. has …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …

The Impact Of Constitutional Liability On The Privatization Movement After "Richardson V. Mcknight", Paul H. Morris

Vanderbilt Law Review

Privatization" is the process of delegating control of a govern- mental function to the private sector. Although privatization is a relatively new words the concept of privatization can be traced back to the very founding of this continent. Christopher Columbus was a private contractor for the Spanish monarch when he accidentally ran into America while trying to find a quicker route to China. Since Columbus' blooper and the subsequent formation of the United States, privatization has been a part of this country's political culture. Over the last twenty years privatization has experienced an unprecedented level of global support and has …

The Consensual Electronic Surveillance Experiment: State Courts React To "United States V. White", Melanie L. Black Dubis

Vanderbilt Law Review

It has long been recognized that a state, if its citizens so chose, may "serve as a laboratory" for economic and social legislation. In an era of new federalism, state courts have experimented by extending individual rights under state constitutions that the United States Supreme Court, beginning with the Burger Court, refused to recognize under the federal constitution. Although this approach has been criticized by the judiciary and academia, it continues to be a driving force in the development of individual rights.

In United States v. White, the Supreme Court held that the police practice of obtaining evidence with warrantless …

Anticipatory Search Warrants: The Supreme Court's Opportunity To Reexamine The Framework Of The Fourth Amendment, David P. Mitchell

Vanderbilt Law Review

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges …

Private Lives, Public Selves, Jean B. Elshtain

Vanderbilt Law Review

What of the making public of a letter, what of the vocation of correspondent? Letters are a private genre, belonging in general, Kundera would say, to the domain of intimate life. When they "go public" some boundary is crossed, some violation is committed. Kundera's position hints that the great Oliver Wendell Holmes was perhaps a bit of a monster, seeming in his private life to be very much the "same" man as he was in his public vocation, except for his romantic effulgency with Clare Castletown. Reading this occasionally twittery and school boyish prose in Professor G. Edward White's article, …

The Constitutionality Of An Off-Dutysmoking Ban For Public Employees:Should The State Butt Out?, Elizabeth B. Thompson

Vanderbilt Law Review

During the past several years, restrictions imposed by states, cities,and municipalities on smoking in public areas have survived court challenges and become almost commonplace.' Likewise, both public and private employers have limited smoking in the workplace. A further restriction that seems to be emerging, however, is a refusal by both the state and a growing number of private employers to hire or to continue to employ smokers. These restrictions limit the employee's freedom to smoke not only in the workplace, but also after working hours and within the privacy of the worker's home.

This Note will address the constitutionality of …

Florida V. Riley: The Emerging Standard For Aerial Surveillance Of The Curtilage, David J. Stewart

Vanderbilt Law Review

The expression, "a man's home is his castle," embodies one of the most cherished individual liberties in American society, the right to en-joy privacy and freedom from unreasonable government intrusion in the confines of one's home.' Recognizing the importance of this right, the first Senate adopted the fourth amendment, which protects individuals from unreasonable searches and seizures.

Initially, the United States Supreme Court narrowly construed the fourth amendment as protecting only physical intrusions of persons,houses, papers, and effects.4 Later, the Court expanded coverage of the fourth amendment to include the area immediately adjacent to the home and used in connection …

Privatization Of Corrections: Is The State Out On A Limb When The Company Goes Bankrupt?, Cathy E. Holley

Vanderbilt Law Review

The incarceration of convicted criminals is an important matter to law enforcement officials and the public at large. Institutional correctional services consume significant governmental energy and resources. In 1983 corrections, including jails, prisons, probation, and parole, cost over 10.4 billion dollars. In 1985 approximately 503,000 people were imprisoned in federal and state correctional facilities.' The provision of prison services must occur on a continuous basis, and space must be available for every convicted criminal. As certain commentators have noted, "[o]ne cannot simply let offenders wait in line for an opening."'Historically, local, state, and federal government has overseen and operated our …

The Right Of Publicity: Commercial Exploitation Of The Associative Value Of Personality, Sheldon W. Halpern

Vanderbilt Law Review

For more than thirty years, dispute and confusion have marked the emergence and development of the so-called "right of publicity,"' a right that is concerned with the use of attributes of a generally identifiable person to enhance the commercial value of an enterprise. A dense, complex array of cases, accompanied by and analyzed in an even denser array of commentary, has been the vehicle for adumbrating the emergent right. Battle lines are drawn over whether the creature emerging from the fermenting ooze of modern mass communications is a species of "property" or a purely personal "privacy" interest."Everywhere one finds the …

The Securing Of The Premises Exception: A Search For The Proper Balance, Adam K. Peck

Vanderbilt Law Review

This Recent Development argues that although an opinion endorsed by only two justices is not binding precedent, this portion of Segura represents an undesirable departure from the strict protections traditionally afforded a person's privacy interest in the home and leaves lower courts confused about the constitutional limitations on seizures in the home. Part II examines prior Supreme Court opinions that have defined the parameters of permissible warrantless searches and seizures. Part III explores the circuit court opinions that have developed a "securing of the premises"exception. Part IV describes Chief Justice Burger's analysis in Segura. Part V argues that the Chief …

Copyright And The Moral Right: Is An American Marriage Possible?, Roberta R. Kwall

Vanderbilt Law Review

The 1976 Copyright Act (the 1976 Act) embodies the most extensive reforms in the history of our nation's copyright laws. One proposed reform that is noticeably absent from the statutory scheme, however, is the explicit adoption of protections for the personal rights of creators with respect to their works. Instead,the 1976 Act continues this country's tradition of safeguarding only the pecuniary rights of a copyright owner. By assuring the copyright owner the exclusive rights to reproduce and distribute the original work, to prepare derivative works, and to perform and display publicly certain types of copyrighted works, the 1976 Act focuses …

Use Of Surveillance Evidence Under Title Iii, Thomas C. Banks

Vanderbilt Law Review

The rationale offered by Congress for requiring immediate sealing of wiretapping tapes by the court upon the completion of the interception period is to preserve the integrity of the tapes by preventing any tape tampering, alteration, editing, or other governmental bad faith. Congress, however, also added an exception to the sealing requirement that permits disclosure of the tapes' contents in a judicial proceeding if the government has contravened the sealing requirement yet has offered a satisfactory explanation for either a failure to seal or a delay in sealing. No circuit court treats sealing requirement violations in a manner that effects …

The Interest In Limiting The Disclosure Of Personal Information: A Constitutional Analysis, Heyward C. Hosch Iii

Vanderbilt Law Review

This Note examines possible constitutional protections for the individual interest in restricting a government agency's dissemination of legitimately compiled personal information to the purpose for which it was originally obtained. Part II of this Note defines the substantive interest that underlies the individual's desire to limit disclosure of information about himself by the government. Part III examines Congress' response to the growing public concern for individual control of personal information and concludes that legislative action has been and likely will continue to be inadequate protection for the individual's interest in limited disclosure. The next part discusses the possible textual sources …

Antitrust Scrutiny Of The Health Professions: Developing A Framework For Assessing Private Restraints, Robert F. Leibenluft, Michael R. Pollard

Vanderbilt Law Review

This Article has suggested that courts adopt an intermediate level of scrutiny, between per se and Rule of Reason analysis. Under this analysis, a rebuttable presumption of illegality attaches to those practices which in other contexts are per se illegal. The weight of this presumption varies with the familiarity of the court with the restraint, its similarity to traditional per se conduct, and the strength of the procompetitive justification.This analytical approach is desirable for two reasons. First,courts are reluctant to apply commercial per se rules of illegality to professional restraints, and with good reason. Professional practices do differ from purely …

Inheritability Of The Right Of Publicity Upon The Death Of The Famous, Ben C. Adams

Vanderbilt Law Review

After tracing the evolution of the right of publicity, this Recent Development focuses on these recent decisions confronting the issue of descendibility. This Recent Development then concludes that the right of publicity should be inheritable for a designated period of time and that inheritability should not depend upon previous exploitation of the right.