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Articles 1 - 25 of 25
Full-Text Articles in Law
Your Biometric Data Is Concrete, Your Injury Is Imminent And Particularized: Articulating A Bipa Claim To Survive Article Iii Standing After Transunion V. Ramirez, Kelsey L. Kenny
Maine Law Review
Biometric data is a digital translation of self which endures in its accuracy for one’s entire lifespan. As integral elements of modern life continue to transition their operations exclusively online, the verifiable “digital self” has become indispensable. The immutable and sensitive nature of biometric data makes it peculiarly vulnerable to misappropriation and abuse. Yet the most frightening is the unknown. For an individual who has had their digital extension-of-self covertly stolen or leaked, the dangers that lie in the technology of the future are innumerable. The Illinois legislature recognized the danger associated with the cavalier collection and handling of biometric …
Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, Charles E. Volkwein
Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, Charles E. Volkwein
Privacy Certificate Student Publications
Today’s availability of massive data sets, inexpensive data storage, and sophisticated analytical software has transformed the capabilities of law enforcement and created new forms of “Big Data Policing.” While Big Data Policing may improve the administration of public safety, these methods endanger constitutional protections against warrantless searches and seizures. This Article explores the Fourth Amendment consequences of Big Data Policing in three parts. First, it provides an overview of Fourth Amendment jurisprudence and its evolution in light of new policing technologies. Next, the Article reviews the concept of “Big Data” and examines three forms of Big Data Policing: Predictive Policing …
Revenge Porn: The Result Of A Lack Of Privacy In An Internet-Based Society, Shelbie M. Mora
Revenge Porn: The Result Of A Lack Of Privacy In An Internet-Based Society, Shelbie M. Mora
Privacy Certificate Student Publications
This paper is about revenge porn statutes within and outside of the United States and their privacy consequences to victims. This paper focuses heavily on two state laws and reviews a case in each state and then explains the implications the ruling has on victims. With other countries' statutes, the paper primarily focuses on penalties for violations. To finish, there is a review of a failed proposed US statute and then I propose my own law and penalties.
Life's Not Fair. Is Life Insurance?, Mark A. Sayre
Life's Not Fair. Is Life Insurance?, Mark A. Sayre
Privacy Certificate Student Publications
The rapid adoption of artificial intelligence by life insurance companies increases the risk that such practices may unfairly discriminate against insurance applicants based on race. The article briefly discusses the history of racial discrimination in life insurance pricing, followed by a summary of current antidiscrimination law. Next, proposed state legislation to address discrimination risks posed by artificial intelligence is discussed. Finally, the article discusses the potential that professional standards may provide a faster way to mitigate discrimination risk in a nationally uniform manner.
Leaning Into Chaos (Child's Health And Online Safety Act): Revision To Ftc's Enforcement Of Coppa & New Model Rule For Child Advertising, Gabrielle N. Schwartz
Leaning Into Chaos (Child's Health And Online Safety Act): Revision To Ftc's Enforcement Of Coppa & New Model Rule For Child Advertising, Gabrielle N. Schwartz
Privacy Certificate Student Publications
This article focuses on the need for a new model act introduced by the author (the Child’s Health and Online Safety Act) to amend the Child’s Online Privacy Protection Rule. First, to understand the landscape of existing child privacy protections, this article discusses the historical background of the Federal Trade Commission’s (FTC’s) authority to regulate child advertising. Furthermore, this article illustrates how the current law, the Children’s Online Privacy Protection Rule (COPPA), regulates entities who direct their websites or online services and advertising to children. Next, this article introduces case law that illustrates the weaknesses of COPPA. Finally, the focus …
Narrowing Data Protection's Enforcement Gap, Filippo Lancieri
Narrowing Data Protection's Enforcement Gap, Filippo Lancieri
Maine Law Review
The rise of data protection laws is one of the most profound legal changes of this century. Yet, despite their nominal force and widespread adoption, available data indicates that these laws recurrently suffer from an enforcement gap—that is, a wide disparity between the stated protections on the books and the reality of how companies respond to them on the ground. Indeed, Appendix I to this Article introduces a novel literature review of twenty-six studies that analyzed the impact on the ground of the GDPR and the CCPA: none found a meaningful improvement in citizen’s data privacy. This raises the question: …
The Development And The Future Of Privacy In Maine, Scott P. Bloomberg
The Development And The Future Of Privacy In Maine, Scott P. Bloomberg
Maine Law Review
In the United States, privacy law has traditionally developed in concert with intrusions created by newfangled technologies. This pattern has held true in Maine. Beginning in the late 1960s, the state has experienced three eras of privacy reform that track the technological advances of the mid-century, the internet era, and the new era of social media and big data. This Article details these three eras of reform and advances several proposals for responding to the challenges posed by the era that we are living through today. Indeed, at the beginning of the 2020s, there is much work on the horizon …
Dysregulating The Media: Digital Redlining, Privacy Erosion, And The Unintentional Deregulation Of American Media, Jon Garon
Maine Law Review
Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook, and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law. Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the …
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
Maine Law Review
There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …
Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley
Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley
Maine Law Review
The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …
An Economic Analysis Of The Law Surrounding Data Aggregation In Cyberspace, Johnathan M. H. Short
An Economic Analysis Of The Law Surrounding Data Aggregation In Cyberspace, Johnathan M. H. Short
Maine Law Review
The emergence of technological advances has traditionally created new and unique legal problems. The solutions to counter these problems are often drawn from our legal traditions and adapted to an ever-modernizing world. However, as Professor Coase opined at the dawn of the communication technology revolution, “lawyers and economists should not be so overwhelmed by the emergence of new technologies as to change the existing legal and economic system without first making quite certain that this is required.” Examination and reflection, in other words, is paramount to instituting a sound legal framework to encompass developing legal problems in technology. This Article …
Desperately Seeking Solutions: Using Implementation-Based Solutions For The Troubles Of Information Privacy In The Age Of Data Mining And The Internet Society, Tal Z. Zarsky
Maine Law Review
Our personal information is constantly being recorded, stored and analyzed. Commercial entities watch our every action, storing this data and analyzing it in conjunction with information acquired from third parties. These entities use this knowledge to their benefit (and at times, our detriment) by discriminating between various customers on the basis of this personal information. At the same time, in the media market, large conglomerates can now provide specifically tailored content to individual customers on the basis of such data, thus potentially controlling their perspectives and impairing their autonomy. The expanding use of data mining applications, which enable vendors to …
Contemplating The Use Of Classified Or State Secret Information Obtained Ex Parte On The Merits In Civil Litigation: Bl(A)Ck Tea Society V. City Of Boston, Brian M. Tomney
Maine Law Review
In Bl(a)ck Tea Society v. City of Boston, the First Circuit Court of Appeals affirmed, without dissent, a district court's ruling denying protesters at the 2004 Democratic National Convention a preliminary injunction designed to force the City of Boston to modify its designated demonstration zone (DZ) and remove some of the draconian security measures surrounding the zone. The injunction was denied by Judge Woodlock after he personally inspected the DZ and determined that, given “constraints of time, geography, and safety,” there were no viable alternatives—to site location or construction of the DZ itself—that could reasonably occur before the convention started. …
Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta
Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta
Maine Law Review
In Blethen Maine Newspapers, Inc. v. State, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, held that release of records relating to Attorney General G. Steven Rowe's investigation of alleged sexual abuse by Catholic priests was warranted under Maine's Freedom of Access Act (FOAA). Although such investigative records are designated confidential by statute, the majority held that the public's interest in the contents of the records mandated their disclosure after all information identifying persons other than the deceased priests had been redacted. The concurrence asserted that the majority had reached the correct conclusion, but in so …
Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee
Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee
Maine Law Review
Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which the First …
Personal Jurisdiction In The Data Age: Macdermid V. Deiter's Adaptation Of International Shoe Amidst Supreme Court Uncertainty, Ryan Almy
Maine Law Review
In MacDermid, Inc. v. Deiter, the Second Circuit held that a Connecticut court may exercise personal jurisdiction over a defendant who allegedly used a computer in Canada to remotely access a computer server located in Connecticut in order to misappropriate proprietary, confidential electronic information belonging to a Connecticut corporation. This Note argues that, given the factual elements before the court, MacDermid was an unsurprising, orthodox, and proper holding in the context of personal jurisdiction jurisprudence. However, the facts in MacDermid, and the corresponding limits inherent in the Second Circuit’s holding, reveal potentially gaping holes in our modern personal jurisdiction framework …
Privacy Law's Precautionary Principle Problem, Adam Thierer
Privacy Law's Precautionary Principle Problem, Adam Thierer
Maine Law Review
Privacy law today faces two interrelated problems. The first is an information control problem. Like so many other fields of modern cyberlaw—intellectual property, online safety, cybersecurity, etc.—privacy law is being challenged by intractable Information Age realties. Specifically, it is easier than ever before for information to circulate freely and harder than ever to bottle it up once it is released. This has not slowed efforts to fashion new rules aimed at bottling up those information flows. If anything, the pace of privacy-related regulatory proposals has been steadily increasing in recent years even as these information control challenges multiply. This has …
Privacy And Security In The Cloud: Some Realism About Technical Solutions To Transnational Surveillance In The Post-Snowden Era, Joris V.J. Van Hoboken, Ira S. Rubinstein
Privacy And Security In The Cloud: Some Realism About Technical Solutions To Transnational Surveillance In The Post-Snowden Era, Joris V.J. Van Hoboken, Ira S. Rubinstein
Maine Law Review
Since June 2013, the leak of thousands of classified documents regarding highly sensitive U.S. surveillance activities by former National Security Agency (NSA) contractor Edward Snowden has greatly intensified discussions of privacy, trust, and freedom in relation to the use of global computing and communication services. This is happening during a period of ongoing transition to cloud computing services by organizations, businesses, and individuals. There has always been a question of inherent in this transition: are cloud services sufficiently able to guarantee the security of their customers’ data as well s the proper restrictions on access by third parties, including governments? …
The Promise And Shortcomings Of Privacy Multistakeholder Policymaking: A Case Study, Omer Tene, J. Trevor Hughes
The Promise And Shortcomings Of Privacy Multistakeholder Policymaking: A Case Study, Omer Tene, J. Trevor Hughes
Maine Law Review
With formal privacy policymaking processes mired in discord, governments and regulators in the United States and Europe have turned to the private sector seeking assistance and solutions. Multistakeholder-driven self-regulation and co-regulation have been pursued in a variety of contexts ranging from online privacy and transparency for mobile applications to protection of transborder data flows. This article focuses on one such process, the World Wide Web Consortium (W3C) discussion of a Do Not Track (DNT) standard, as a case study. It critically analyzes the procedural pitfalls, which hampered the quest to reach a compromise solution acceptable by groups with diametrically opposed …
Local Law Enforcement Jumps On The Big Data Bandwagon: Automated License Plate Recognition Systems, Infomation Privacy, And Access To Government Information, Bryce Clayton Newell
Local Law Enforcement Jumps On The Big Data Bandwagon: Automated License Plate Recognition Systems, Infomation Privacy, And Access To Government Information, Bryce Clayton Newell
Maine Law Review
As government agencies and law enforcement departments increasingly adopt big-data surveillance technologies as part of their routine investigatory practice, personal information privacy concerns are becoming progressively more palpable. On the other hand, advancing technologies and data-mining potentially offer law enforcement greater ability to detect, investigate, and prosecute criminal activity. These concerns (for personal information privacy and the efficacy of law enforcement) are both very important in contemporary society. On one view, American privacy law has not kept up with advancing technological capabilities, and government agencies have arguably begun to overstep the acceptable boundaries of information access, violating the privacy of …
The Glass House Effect: Big Data, The New Oil, And The Power Of Analogy, Dennis D. Hirsch
The Glass House Effect: Big Data, The New Oil, And The Power Of Analogy, Dennis D. Hirsch
Maine Law Review
One hears with some frequency today that “data is the new oil.” Recently, Virginia Rometty, IBM’s Chief Executive Officer, updated the phrase, explaining that Big Data is the new oil. Most people who have used the analogy do so in order to convey Big Data’s tremendous value. Data is an essential resource that powers the information economy much like oil has fueled the industrial economy. Big Data promises a plethora of new uses—the identification and prevention of the pandemics, the emergence of new businesses and business sectors, the improvement of health care quality and efficiency, and enhanced protection of the …
Dying To Know: A Demand For Genuine Public Access To Clinical Trial Results Data, Christine Galbraith Davik
Dying To Know: A Demand For Genuine Public Access To Clinical Trial Results Data, Christine Galbraith Davik
Faculty Publications
Four years ago at the age of 34, I heard the awful words "I'm sorry, but you have breast cancer" coming from my doctor. After the initial shock of the diagnosis wore off, I like many others who have faced life-threatening diseases began to work with a team of physicians to develop an appropriate treatment plan, which included contemplating enrollment in a clinical trial. Quite unexpectedly, my position as an intellectual property professor whose scholarship focuses primarily on information control, my role as a member of my university's Institutional Review Board that oversees studies involving human subjects, and my newly …
A Panoptic Approach To Information Policy: Utilizing A More Balanced Theory Of Property In Order To Ensure The Existence Of A Prodigious Public Domain, Christine Galbraith Davik
A Panoptic Approach To Information Policy: Utilizing A More Balanced Theory Of Property In Order To Ensure The Existence Of A Prodigious Public Domain, Christine Galbraith Davik
Faculty Publications
Public access to ideas and information is critically important to creativity, competition, innovation, and a democratic culture. Nonetheless, material that belongs in the public domain is increasingly being transformed into private property. Data which was once freely available has become inaccessible as a result of legislatively or judicially sanctioned technological and contractual constraints. This is due in large part to the fact that lawmakers promulgating legislation and judges resolving disputes concerning data have failed to adequately take into account the multi-dimensional problems involved in controversies concerning access to ideas and information. The focus is often inappropriately centered on the tangible …
Remembering The Public Domain, Christine Galbraith Davik
Remembering The Public Domain, Christine Galbraith Davik
Faculty Publications
Rapid advances in communication technology over the past decade have resulted in the previously unimaginable ability to seamlessly exchange ideas and data on a global basis. Nonetheless, despite the undeniable progress that has been made, access to information is ironically becoming progressively more. This is due in large part to the fact that resources which belong in the public domain are increasingly being transformed into private property. The carefully balanced provisions of copyright law are gradually becoming displaced by contractual, technological, and legislative constraints that allow for the tight control of access to and use of the materials in question. …
Access Denied: Improper Use Of The Computer Fraud And Abuse Act To Control Information On Publicly Accessible Internet Websites, Christine Galbraith Davik
Access Denied: Improper Use Of The Computer Fraud And Abuse Act To Control Information On Publicly Accessible Internet Websites, Christine Galbraith Davik
Faculty Publications
The Computer Fraud and Abuse Act (CFAA) was originally enacted in 1984 as a criminal statute to address hacking and the growing problem of computer crime. Recently, however, in an attempt to control competition and maintain market share, a number of companies have sought to prevent entities they deem unwelcome from obtaining data on their websites. Utilizing the civil action provisions of the CFAA, these companies have surprisingly succeeded in convincing federal courts that hacking includes accessing and using the factual information a company has chosen to post on a publicly available website. Despite the fact that many of the …