Law Commons^™

Machine Speech: Towards A Unified Doctrine Of Attribution And Control, Brian Sites

University of Miami Law Review

Like many courts across the country in 2023, courts in the Eleventh Circuit were met with novel claims challenging ChatGPT and other artificial intelligence tools. These cases raise common questions: How should courts treat the speech of machines? When a machine generates allegedly defamatory material, who is the speaker—mortal or machine? When a machine generates expressive creations, who is the artist, and does that shape copyright eligibility? When a machine makes assertions about reality through lab analyses and other forensic reports, who is the accuser, and how does the answer impact a defendant’s rights at trial? Should those answers stem …

Legal Uncertainty In Virtual Worlds And Digital Goods: Do The Same Laws Apply?, Alanna Sadler

University of Miami Business Law Review

The growth of virtual worlds and digital goods will force US courts to examine whether traditional laws are sufficient to protect consumers. To do so requires judges and legislative officials to possess a deep understanding of concepts that are everchanging. Many aspects of virtual worlds, such as the metaverse(s), are driven by web3 technology, the technology responsible for the NFT and cryptocurrency craze of recent years. It is impossible to ascertain the impact of virtual worlds on daily life, however, companies must nevertheless prepare for the shift toward virtual spaces and digital goods. There is greater skepticism regarding the utility …

Privacy Or Safety? The Use Of Cameras To Combat Special Ed Abuse, Sarah M. Benites

University of Massachusetts Law Review

Self-contained classroom students face abuse from educators at disproportionate rates compared to general education students. To combat the abuse, several jurisdictions, including Massachusetts, have proposed or enacted bills enabling cameras to be placed in self-contained classrooms. This has sparked privacy concerns, particularly regarding whether the usage would amount to an infringement on the Fourth Amendment rights of students and educators. This note argues that surveillance is an ineffective deterrent to prevent violent and abusive behavior and should not justify bypassing potential privacy and constitutional violations. It outlines the relevant case law regarding students and teachers and apply these standards to …

The Detention Of Immigration Policy: How States Are Commandeering Dhs Enforcement Guidelines, Brianna Riguera

University of Miami Inter-American Law Review

In 2021, the Department of Homeland Security issued immigration guidelines that de-emphasized detention and removal of non-citizens who, aside from being undocumented, are otherwise contributing members of communities across the United States. However, Arizona, Montana, Ohio, Texas, and Louisiana challenged these guidelines, launching a nuanced legal dispute that concerned states standing under Article III, prosecutorial discretion, and nationwide preliminary injunctions. In United States v. Texas, the Court ruled 8-1 that the states lacked standing and reversed the Fifth Circuit’s nationwide injunction, but the majority opinion failed to address the other legal issues that are pressing on a rife debate about …

The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson

Pepperdine Law Review

The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …

Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran

Catholic University Law Review

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …

Authentication Of Cybernetic Avatars And Legal System Challenges; With A View To The Trial Concept Of New Dimensional Domain Jurisprudence (Ai, Robot, And Avatar Law), Fumio Shimpo

Japanese Society and Culture

This article aims to illustrate the basis for the development of authentication, which will be the foundation of future cybernetic-avatar (CA) infrastructures, enabling the safe and secure use of CA’s. This will be realised by the authentication of CA operators (User Authentication Technology), identification and authentication of CA’s (CA Authentication), and ensuring connectivity and existence between operators (User Entities) and the CA’s themselves (CA Notarisation). An ELSI (Ethical, Legal, Social Implications) research platform will be established, to develop a new dimension of the legal field, that is, AI, Robot, and Avatar Law to solve the social issues and realise an …

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Washington Law Review

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Redefining The Injury-In-Fact: Treating Personally Identifying Information As Bailed Property, Austin Headrick

Georgia Law Review

There is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been …

Prevent Phishy Business: Comparing California’S And The United Kingdom’S Age-Appropriate Design Code To Protect Youth From Cybersecurity Threats, Morgan Comite

University of Miami International and Comparative Law Review

Cybersecurity is the safeguarding of computer systems and networks against information disclosure, theft, or damage to users’ hardware, software, or electronic data, as well as disruption or misdirection of the services computers and networks provide. Knowing privacy would be breached due to the impact of COVID, in 2020, the United Kingdom got ahead of the game and passed rules/regulations requiring online services to protect children under the age of eighteen from scams, phishing, and security attacks. However, currently, the United States does not have a sufficient uniform privacy law governed to protect children under the age of eighteen from cybersecurity …

June 24, 2022, Bisma Shoaib

Seattle Journal for Social Justice

No abstract provided.

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 …

Forget About Ferpa: How Foia Protects Student-Athlete Privacy In The Nil Era, Kamron Cox

Vanderbilt Journal of Entertainment & Technology Law

The start of the name, image, and likeness (NIL) era stirred public fervor about the new earning potential of high-profile student-athletes. Since institutional policies and state laws governing NIL require student-athletes to broadly disclose information about their NIL activities to their respective institutions, the several state laws that follow the approach of the federal Freedom of Information Act (FOIA) can jeopardize the privacy of student-athlete NIL information. Major universities have repeatedly resorted to the unreliable defense of the Family Educational Rights and Privacy Act as well as sporadic state legislation to protect student-athlete privacy in the new NIL space. However, …

Eavesdropping: The Forgotten Public Nuisance In The Age Of Alexa, Julia Keller

Vanderbilt Law Review

Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: …

Comparing Gdpr Against The United States’ Approach To Data Breach Notification By Examining Texas And California And The Feasibility Of A Universal Standard, Amrit Nagi

Cybaris®

No abstract provided.

The Modern Border: The Government Can Search . . . Anything?, Abigail Nusbaum

FIU Law Review

The evolution of modern technology has introduced new obstacles in interpreting the Fourth Amendment’s application to searches of peoples’ effects. Specifically, the longstanding exception to the Fourth Amendment permitting searches at the international border in the absence of probable cause does not so neatly apply to forensic searches of cell phones. Consequently, a circuit split has emerged on two aspects of the issue: the scope of the border exception and the requisite level of suspicion within that exception. The Supreme Court should find that forensic cell phone searches at the international border implicate Fourth Amendment privacy interests, requiring the border …

Justice David Hackett Souter And The Right To Privacy, Scott P. Johnson

Mitchell Hamline Law Review

No abstract provided.

Fintech Lending In India: Taking Stock Of Implications For Privacy And Autonomy, Vidushi Marda, Amber Sinha

Indian Journal of Law and Technology

In the last five years, the Fintech sector has thrived in India, with Machine Learning (ML) driven credit scoring based on alternative data, emerging as a growing segment. The credit scoring industry in India needs to be viewed in light of a careful examination of rights, inclusion, appropriate safeguards and discrimination, currently missing from the discourse and practices. In this paper, we explain how ML-based credit scoring works, and the regulatory and commercial factors that have enabled and impeded its growth in India. Through legal and technological analysis, richened by insights from qualitative interviews with entrepreneurs and practitioners, we provide …

Our Changing Reality: The Metaverse And The Importance Of Privacy Regulations In The United States, Anushkay Raza

Global Business Law Review

This Note discusses the legal and pressing digital challenges that arise in connection with the growing use of virtual reality, and more specifically, the metaverse. As this digital realm becomes more integrated into our daily lives, the United States should look towards creating a federal privacy law that protects fundamental individual privacy rights. This Note argues that congress should emulate the European Union's privacy regulations, and further, balances the potential consequences and benefits of adapting European regulations within the United Sates. Finally, this Note provides drafting considerations of future lawyers who will not only be dealing with the rise of …

Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield

Vanderbilt Journal of Entertainment & Technology Law

As the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Pace Law Review

No abstract provided.

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

Keep Your Fingerprints To Yourself: New York Needs A Biometric Privacy Law, Brendan Mcnerney

St. John's Law Review

(Excerpt)

Imagine walking into a store, picking something up, and just walking out. No longer is this shoplifting, it is legal. In 2016, Amazon introduced their “Just Walk Out” technology in Seattle. “Just Walk Out” uses cameras located throughout the store to monitor shoppers, document what they pick up, and automatically charge that shoppers’ Amazon account when they leave the store. Recently, Amazon started selling “Just Walk Out” technology to other retailers. Since then, retailers have become increasingly interested in collecting and using customers’ “biometric identifiers and information.” Generally, “biometrics” is used to refer to “measurable human biological and behavioral …

Are Handguns A Matter Of Privacy?, Bret N. Bogenschneider

St. Mary's Law Journal

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide. However, a prohibition of handguns under this approach would …

J Mich Dent Assoc August 2023

The Journal of the Michigan Dental Association

Every month, The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this issue, the reader will find the following original content:

• A cover story on new dentist’s perceptions of professionalism.
• A feature on legal considerations when addressing employee wellness.
• A feature on the meaning of wellness by ADA Trustee Dr. Brett Kessler.
• Practice guidance on conducting a HIPAA security risk analysis.
• Commentary “The New Golden Age of Dentistry.”
• Editorial and regular department articles on MDA Foundation …

Encouraging Public Access To Pharmaceuticals Through Modified Protection Of Clinical Trial Data, Scott M. Nolan Ii

IP Theory

Part I of this Article investigates the development of pharmaceuticals and clinical trial data with a focus on patent and data protection. Part II evaluates the effects of protection and the challenges it poses to widespread public pharmaceutical access. Part III discusses two scholarly approaches to the public access issue that focus on clinical data protection and their associated challenges. In light of these scholarly works, Part IV suggests a new approach to clinical trial data protection that aims to improve public pharmaceutical access while maintaining the incentives to invent for drug developers.

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 …

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 …

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

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

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.