Law Commons^™

It's Reasonable To Expect Privacy When Watching Adult Videos, Matthew Leonhardt

Touro Law Review

No abstract provided.

The Blueprint: Critiques Of The Fingerprint And Abandonment Paradigms Utilized To Reject An Expectation Of Privacy In Dna, Avi Goldstein

Touro Law Review

No abstract provided.

The Communication Decency Act Gone Wild: A Case For Renewing The Presumption Against Preemption, Ryan J.P. Dyer

Seattle University Law Review

Since its inception, the Internet has disseminated the most vital commodity known to man—information. But not all information is societally desirable. In fact, much of what the Internet serves to disseminate is demonstrably criminal. Nevertheless, in the effort to unbind the “vibrant and competitive free market” of ideas on the Internet, Congress enacted section 230 of the Communications Decency Act, which essentially grants immunity to interactive computer service providers from liability for information provided by a third party. This Comment suggests that, in certain contexts, courts applying section 230 immunity should reexamine the preemptive effect Congress intended section 230 to …

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

A. Michael Froomkin

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem. Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to …

Pretrial Detention And The Right To Be Monitored, Samuel R. Wiseman

Scholarly Publications

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, electronic monitoring has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants …

The 1 Percent Solution: Corporate Tax Returns Should Be Public (And How To Get There), Reuven S. Avi-Yonah, Ariel Siman

Articles

The justification for publishing corporate tax returns is that corporations are given immense benefits by the state that bestows upon them unlimited life and limited liability, and therefore they owe the public the information of how they treat the state that created them. Tax returns, like the financial disclosures that publicly traded corporations must file with the SEC, also provide useful information to shareholders, creditors, and the investing public.

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

Renée M. Hutchins

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” has stepped …

Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain

Faculty Scholarship

This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …

Metadata: Piecing Together A Privacy Solution, Chris Conley

Faculty Scholarship

Imagine the government is constantly monitoring you — keeping track of every person you call or email, every place you go, everything you buy, and more — all without getting a warrant. And when you challenge them, they claim you have no right to expect this kind of information to be private. Besides, they’re not actually listening to what you say or reading what you write, so what’s the big deal anyhow?

Unfortunately, this scenario is more real than imaginary. Government agencies ranging from the NSA to local police departments have taken advantage of weak or uncertain legal protections for …

The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa

Pepperdine Law Review

No abstract provided.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Facebook Is Not Your Friend: Protecting A Private Employee's Expectation Of Privacy In Social Networking Content In The Twenty-First Century Workplace, Cara Magatelli

The Journal of Business, Entrepreneurship & the Law

This Comment explores the implications SNS postings have on private employers concerning the off-duty, non-work related conduct of their employees. This argument recognizes that an employee is entitled to engage in whatever legal off-duty conduct he chooses, so long as the behavior does not damage his employer's legitimate business interests. An employer should not be able to use information gleaned from an employee's SNS postings, unrelated to an employer's business interests, to punish an employee for her choices outside the work place. Disciplining or terminating an employee for his off-duty lifestyle choices permits the morals and standards of the employer …

Big Data's Other Privacy Problem, James Grimmelmann

James Grimmelmann

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 …

Give Me Your Password: The Intrusive Social Media Policies In Our Schools, Talon Hurst

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Evidentiary Power And Propriety Of Digital Identifiers And The Impact On Privacy Rights In The United States, Michael Losavio, Deborah Keeling

Journal of Digital Forensics, Security and Law

Media and network systems capture and store data about electronic activity in new, sometimes unprecedented ways; computational systems make for new means of analysis and knowledge development. These new forms offer new, powerful tactical tools for investigations of electronic malfeasance under traditional legal regulation of state power, particular that of Fourth Amendment limitations on police searches and seizures under the U.S. Constitution. But autonomy, identity and authenticity concerns with electronic data raise issues of public policy, privacy and proper police oversight of civil society. We examine those issues and their implications for digital and computational forensics

Effects Of The Factory Reset On Mobile Devices, Riqui Schwamm, Neil C. Rowe

Journal of Digital Forensics, Security and Law

Mobile devices usually provide a “factory-reset” tool to erase user-specific data from the main secondary storage. 9 Apple iPhones, 10 Android devices, and 2 BlackBerry devices were tested in the first systematic evaluation of the effectiveness of factory resets. Tests used the Cellebrite UME-36 Pro with the UFED Physical Analyzer, the Bulk Extractor open-source tool, and our own programs for extracting metadata, classifying file paths, and comparing them between images. Two phones were subjected to more detailed analysis. Results showed that many kinds of data were removed by the resets, but much user-specific configuration data was left. Android devices did …

Growing Ideas - Confidentiality: Respecting The Privacy Of All Families, University Of Maine Center For Community Inclusion And Disability Studies

Early Childhood Resources

Care and education professionals routinely receive confidential information about children and families as part of their work. Maintaining confidentiality is important both legally and ethically.

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Journal Articles

There is an inherent tension between an individual’s desire to safeguard her personal information and the expressive rights of businesses seeking to communicate that information to others. This tension has multiplied as consumers generate and businesses collect more and more personal data online, forcing efforts to strike an appropriate balance between privacy and commercial speech. No consensus on this balance has been reached. Some privacy scholars bemoan what they see as a slanted playing field in favor of those wishing to profit from the private details of other people’s lives. Others contend that the right in free expression must always …

Personal Curtilage: Fourth Amendment Security In Public, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on …

Forget Me, Forget Me Not: Reconciling Two Different Paradigms Of The Right To Be Forgotten, Lawrence Siry

Kentucky Law Journal

In May of 2014, the Court of Justice of the European Union handed down its decision in the case of Google Spain SL v. Agencia Española de Protección de Datos. This landmark decision ignited a firestorm of debate over the "right to be forgotten": the right of users to withdraw information about themselves available on the internet. With concerns about the restriction of the freedom of expression on the internet, many commentators have criticized the decision as unworkable and dangerous. Others have recognized continuity in the development of privacy and data protection jurisprudence within the European courts. Meanwhile in …

Keep Your Eyes On Eyes In The Sky, Hillary B. Farber

Faculty Publications

To date, eight states have passed bills regulating domestic drone use by government and private individuals. This leaves us with a question: If a city of more than 60,000 residents and a global company with a customer base in the hundreds of millions are racing to the sky, how are we as a commonwealth of 6.6 million to truly launch ourselves into the debate and protect what little privacy we have left?

On Business Torts And The First Amendment, Richard J. Peltz-Steele

Faculty Publications

A gaping question in free speech law surrounds the application of the First Amendment defense in business torts. The pervasiveness of communication technologies, the flourishing of privacy law, and the mere passage of time have precipitated an escalation in tort cases in which communication, and what the defendant may allege is free speech, lies at the heart of the matter.

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

The European Union sparked an intercontinental furor last year with proposed legislation to supersede the 1995 Data Protection Directive (DPD). The EU Parliament approved legislation in a 49-3 committee vote in October. The text, which is not yet published in its current draft at the time of this writing, may yet be amended before being accepted by the union’s 28 member states. The legislation is billed a money saver because it would harmonize EU member states’ data protection laws, which have diverged under the DPD umbrella. The business community is not convinced, fearful that costly new demands will strain balance …

Your View: ‘Do Not Track’ Should Apply To Drivers, Too, Hillary B. Farber

Faculty Publications

Location tracking data can reveal quite a bit of information about a person when it is all pieced together. Just by knowing where and when a person frequents certain places we can know about his/her recreational habits, religious affiliations, professional affiliations, relationship status, personal health and hygiene, social preferences and contacts, and so much more. That is why it is so important to regulate the use of location tracking technology. There are a variety of efforts afoot to rein in government use of such technology – this op-ed is concerned with automated license plate readers.

Abidor V. Napolitano: Suspicionless Cell Phone And Laptop Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles Maclean

Adam Lamparello

The article explores the December 31, 2013 Abidor decision where the federal district court upheld the ongoing application of the border search exception as applied to deep, forensic searches of laptops and other digital devices. That exception allows suspicionless searches of any persons, effects, and “closed containers” crossing a border into the United States, and laptops and external hard drives are generally considered “closed containers” under the border search exception. We argue that the border search exception, grounded as it is in pre-digital age fact patterns, should no longer serve as precedent for border searches of the immense memories of …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

Katz On A Hot Tin Roof: The Reasonable Expectation Of Privacy Is Rudderless In The Digital Age Unless Congress Continually Resets The Privacy Bar, Charles E. Maclean

Charles E. MacLean

The Katz reasonable expectation of privacy doctrine has lasting relevance in the digital age, but that relevance must be carefully and clearly guided in great detail by Congressional and state legislative enactments continually resetting the privacy bar as technology advances. In that way, the Katz “reasonableness” requirements are actually set by the legislative branch, thereby precluding courts from applying inapposite analogies to phone booths, cigarette packs, and business records. Once legislation provides the new contours of digital privacy, those legislative contours become the new “reasonable.”

This article calls upon Congress, and to a lesser extent, state legislatures, to control that …

The Unc Law Library's Redaction Of Its Digitized Collection Of North Carolina Supreme Court Briefs: A Case Study, Nicole Downing

AALL/LexisNexis Call for Papers

This study evaluates the digital redaction process as undertaken by the University of North Carolina Kathrine R. Everett Law Library as part of digitizing their collection of North Carolina Supreme Court briefs. New privacy concerns are raised by digitizing court documents and making them available online. Libraries have an interest in digitizing their print collections of court documents for public access on the Internet, but have received no clear guidance on how to proceed in the face of legal concerns. The purpose of this research is to inform libraries of the legal, ethical, and practical situation surrounding redaction of digitized …

The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.

Albert E Poirier Jr.

The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.

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” …