Law Commons^™

Hired By A Machine: Can A New York City Law Enforce Algorithmic Fairness In Hiring Practices?, Lindsey Fuchs

Fordham Journal of Corporate & Financial Law

Workplace antidiscrimination laws must adapt to address today’s technological realities. If left underregulated, the rapidly expanding role of Artificial Intelligence (“AI”) in hiring practices has the danger of creating new, more obscure modes of discrimination. Companies use these tools to reduce the duration and costs of hiring and potentially attract a larger pool of qualified applicants for their open positions. But how can we guarantee that these hiring tools yield fair outcomes when deployed? These issues are just starting to be addressed at the federal, state, and city levels. This Note tackles whether a new city law can be improved …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Reconciling U.S. Banking And Securities Data Preservation Rules With European Mandatory Data Erasure Under Gdpr, Ronald V. Distante

Fordham Journal of Corporate & Financial Law

United States law, which requires financial institutions to retain customer data, conflicts with European Union law, which requires financial institutions to delete customer data on demand. A financial institution operating transnationally cannot comply with both U.S. and EU law. Financial institutions thus face the issue that they cannot possibly delete and retain the same data simultaneously. This Note will clarify the scope and nature of this conflict.

First, it will clarify the conflict by examining (1) the relevant laws, which are Europe’s General Data Protection Regulation (GDPR), the U.S. Bank Secrecy Act, and Securities and Exchange Commission (SEC) regulations, (2) …

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing …

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …

The Future Of Facial Recognition Is Not Fully Known: Developing Privacy And Security Regulatory Mechanisms For Facial Recognition In The Retail Sector, Elias Wright

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the …

Maps: Scaling Privacy Compliance Analysis To A Million Apps, Sebastian Zimmeck, Peter Story, Daniel Smullen, Abhilasha Ravichander, Ziqi Wang, Joel R. Reidenberg, N. Cameron Russell, Norman Sadeh

Faculty Scholarship

The app economy is largely reliant on data collection as its primary revenue model. To comply with legal requirements, app developers are often obligated to notify users of their privacy practices in privacy policies. However, prior research has suggested that many developers are not accurately disclosing their apps’ privacy practices. Evaluating discrepancies between apps’ code and privacy policies enables the identification of potential compliance issues. In this study, we introduce the Mobile App Privacy System (MAPS) for conducting an extensive privacy census of Android apps. We designed a pipeline for retrieving and analyzing large app populations based on code analysis …

Apis And Your Privacy, N. Cameron Russell

Faculty Scholarship

Application programming interfaces, or APIs, have been the topic of much recent discussion. Newsworthy events, including those involving Facebook’s API and Cambridge Analytica obtaining information about millions of Facebook users, have highlighted the technical capabilities of APIs for prominent websites and mobile applications. At the same time, media coverage of ways that APIs have been misused has sparked concern for potential privacy invasions and other issues of public policy. This paper seeks to educate consumers on how APIs work and how they are used within popular websites and mobile apps to gather, share, and utilize data.

APIs are used in …

The Non-Contractual Nature Of Privacy Policies And A New Critique Of The Notice And Choice Privacy Protection Model, Thomas B. Norton

Fordham Intellectual Property, Media and Entertainment Law Journal

Notice and Choice is the model for protecting privacy online in the United States. Under the model, users of online services are given notice about services information and privacy practices in the form of privacy policies. Based on this information, users can choose whether to use particular online services and whether to exercise any options for protecting their privacy that the services might offer. In theory, Notice and Choice seems like a sound regulatory mechanism. Indeed, state and federal regulatory agencies prefer the model as a basis for privacy enforcement action. But Notice and Choice faces harsh criticism from privacy …

A Postal Code Lottery: Unequal Access To Abortion Services In The United States And Northern Ireland, Hailey K. Flynn

Fordham International Law Journal

This Note argues that one’s postal code, or where one lives within the United States or in Northern Ireland, should not negatively impact a woman’s access to safe abortion services. This Note will examine abortion-related jurisprudence in the United States and Northern Ireland and will make recommendations for the ways in which access to abortion services can be legally improved. Part I will explain current jurisprudence on abortion in the United States within the Due Process Clause and Equal Protection Clause contexts. Part II will analyze the current legal framework that governs access to abortion in Northern Ireland and will …

Newsgathering Takes Flight In Choppy Skies: Legal Obstacles Affecting Journalistic Drone Use, Clay Calvert, Charles D. Tobin, Matthew D. Bunker

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines legal challenges confronting journalists who use drones to gather images. Initially, it traces the history of drones and the Federal Aviation Administration’s efforts to regulate them, as well as new state legislation that aims to restrict drones. This Article then illustrates that a wide array of legal remedies already exist for individuals harmed by journalistic drone usage, and it argues that calls for additional, piecemeal state laws to regulate drones are unnecessary and unduly hinder First Amendment interests in newsgathering and the public’s right to know. Furthermore, this Article asserts that the reasonable-expectation-of-privacy jurisprudence developed in aerial …

Appropriate(D) Moments, Richard Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

INTRODUCTION Quietly reading a book by a window in your apartment isn’t necessarily a “private” act. Many living in densely packed locations like Manhattan inevitably wonder whether eyes peering through telescopes or watching digital camera screens find them, linger for a time, capture images or generate fantasies about who and what they are. That appropriation reality popped into public view in 2013 when Martha and Matthew Foster discovered images of themselves and their children, Delaney and James, in Arne Svenson’s photography exhibition The Neighbors mounted at the Julie Saul Gallery in the Chelsea district of Manhattan. The Fosters lived in …

Internet Privacy Enforcement After Net Neutrality, Thomas B. Norton

Fordham Intellectual Property, Media and Entertainment Law Journal

In March 2015, the Federal Communications Commission reclassified broadband Internet access service providers as “common carriers” subject to obligations under Title II of the Communications Act. One such obligation is to comply with the Act’s section 222 privacy provisions. As a result of reclassification, the Federal Communications Commission claims privacy enforcement jurisdiction over a broad swath of companies that formerly fell within the Federal Trade Commission’s regulatory reach. The Federal Trade Commission and industry players have been outwardly critical of this effect. This Note explores the resulting tension between the two agencies and proposes potential resolutions for it.

Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub

Faculty Scholarship

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …

The Internet Of Things: Building Trust And Maximizing Benefits Through Consumer Control, Julie Brill

Fordham Law Review

The Internet of Things is one of the fastest growing facets of a world that is becoming more data intensive. Connecting cars, appliances, and even clothing to the internet promises to deliver convenience, safety, and, through analysis of the torrent of additional data generated, potential solutions to some of our most intractable problems. But turning on this data flood also creates privacy and security risks for consumers, challenging us to consider how to apply basic privacy principles to the Internet of Things. A wide range of stakeholders—technologists, lawyers, industry leaders, and others—has a role to play in meeting this challenge.

“Sharing” With The Court: The Discoverability Of Private Social Media Accounts In Civil Litigation, Zoe Rosenthal

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Privacy And Cloud Computing In Public Schools, Joel Reidenberg, N. Cameron Russell, Jordan Kovnot, Thomas B. Norton, Ryan Cloutier, Daniela Alvarado

Center on Law and Information Policy

Today, data driven decision-making is at the center of educational policy debates in the United States. School districts are increasingly turning to rapidly evolving technologies and cloud computing to satisfy their educational objectives and take advantage of new opportunities for cost savings, flexibility, and always-available service among others. As public schools in the United States rapidly adopt cloud-computing services, and consequently transfer increasing quantities of student information to third-party providers, privacy issues become more salient and contentious. The protection of student privacy in the context of cloud computing is generally unknown both to the public and to policy-makers. This study …

Can Condoms Be Compelling? Examining The State Interest In Confiscating Condoms From Suspected Sex Workers, Meghan Newcomer

Fordham Law Review

Confiscating condoms from suspected sex workers leaves them at risk for HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy. Yet, police officers in New York, Washington, D.C., and Los Angeles collect condoms from sex workers to use against them as evidence of prostitution. Sometimes, the condoms are taken solely for the purpose of harassment. These actions put sex workers at risk of contracting sexually transmitted diseases because they may continue to engage in sex work without using protection.

In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court established a fundamental privacy right in the use and …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Jurisdictional Challenges In The United States Government’S Move To Cloud Computing Technology, Sasha Segall

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Fordham Law Review

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a …

Valuing Privacy, Youngjae Lee

Fordham Law Review

No abstract provided.

Smartphone, Dumb Regulations: Mixed Signals In Mobile Privacy, Christian Levis

Fordham Intellectual Property, Media and Entertainment Law Journal

The smartphone has turned a user’s location into valuable information. Users of smart devices can use location-based mobile services to get driving directions, check into social networks, or even see which of their friends are around. But the use of this technology, and the new type of data created by it, raises privacy concerns as to who has access to one's location-based information. Because the only legislation covering this technology, the Electronic Communications Privacy Act, is more than twenty-five years old, courts encounter problems when trying to use it to resolve these privacy issues, often reaching illogical results. This Note …

The “New Body Snatchers”: Analyzing The Effect Of Presumed Consent Organ Donation Laws On Privacy, Autonomy, And Liberty, Maryellen Liddy

Fordham Urban Law Journal

This Note examines, in three parts, presumed consent laws as they pertain to organ donation. Part I discusses presumed consent and explains the salient features of presumed consent laws. It then discusses case law that addresses the aftermath of unauthorized organ or tissue harvesting. Part II evaluates the United States Supreme Court's evolving conceptions of the rights of individual and family-based privacy, autonomy, and liberty, for subsequent application to the presumed consent organ donation controversy. Part III analyzes presumed consent laws in light of the donors and their families' privacy, autonomy, and liberty interests. The Note concludes that current presumed …

The Deidentification Dilemma: A Legislative And Contractual Proposal, Robert Gellman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.