Law Commons^™

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

ExpressO

This article critically analyzes Samson v. California and Hudson v. Michigan, which were the Roberts Court's first major Fourth Amendment decisions. In Samson, the Court upheld a California law allowing government officials to search parolees without any suspicion of wrongdoing. In Hudson, to the surprise of almost every observer, the Court held that knock-and-announce violations do not carry with them a remedy of exclusion. What was most notable about Hudson was not only that it rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but that it called into question …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

ExpressO

The Liberal Assault on the Fourth Amendment Christopher Slobogin As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects–-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings …

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

The Place Of Covert Policing In Democratic Societies: An Empirical Study Of The U.S. And Germany, Jacqueline E. Ross

ExpressO

My study of undercover policing explores the ways in which democratic legal systems change when they legalize highly contested police practices that have long been quietly tolerated and accorded minimal scrutiny. Undercover policing is a prime of example of such a practice. It has long been subject to remarkably little legislative oversight and systematic regulation in the United States and Western Europe. It exists in a twilight of legality—a necessary evil, but one inviting anxieties about its legitimacy and consonance with the rule of law. Under pressure from the European Court of Human Rights, Germany (along with other Western European …

Reasonable Expectations Of Privacy And Novel Search Technologies: An Economic Approach, Steven Penney

ExpressO

The “reasonable expectation of privacy” test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. This “moral” approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime.

In this paper, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which …

Privacy And Access To Public Records In The Information Age, Sol Bermann

ExpressO

Online public record access brings a wealth of benefits ranging from greater government access and accountability to increased cost-savings and efficiencies. However, due to the presence of highly sensitive, personal data, an increase in public records access also brings potential dangers, including heightened risk of identity theft and frivolous snooping into the affairs of others.

Historically, public records have had some measure of public accessibility in order to empower citizens with the ability to observe the goings-on of government, leading to greater government accountability. Until the rise of the internet, citizens have had their privacy protected through practical obscurity (the …

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

ExpressO

Public attitudes about privacy are central to the development of fourth amendment doctrine in two respects. These are the two “reasonableness” requirements, which define the scope of the fourth amendment (it protects only “reasonable” expectations of privacy), and provide the key to determining compliance with its commands (it prohibits “unreasonable” searches and seizures). Both requirements are interpreted in substantial part through evaluation of societal norms about acceptable levels of privacy from governmental intrusions. Caselaw, poll data, newspaper articles, internet sites, and other vehicles for gauging public attitudes after the September 11 attacks indicate that public concerns about terrorism and the …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

ExpressO

“Privacy” is one of the fastest growing areas of the law, due in part to the explosion of the Internet over the past decade. When we speak of privacy in the Internet age, we typically mean data protection, the regulation of the use of personal information about individuals by private interests, such as corporations. Unfortunately, much of the discourse on the subject adopts a framework more suitable to traditional privacy, an inviolable “right to be let alone” by the state. Rather than create a sacrosanct right against the government, the modern incarnation of privacy actually creates a quasi-property right, where …

No Direction Home: Will The Law Keep Pace With Human Tracking Technology To Protect Individual Privacy And Stop Geoslavery? , William A. Herbert

ExpressO

The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase “geoslavery” to describe the abusive use of such technology underscores the power of the new technology. This article examines the use of such technology under current federal and state law and suggests potential means for developing greater legal protections against the abusive use of the technology and the intrusion into personal privacy.

The primary legal source for protections against governmental intrusion into an individual’s privacy stem from various …

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

ExpressO

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. …

Getting Real About Privacy: Eccentric Expectations In The Post-9/11 World, Jeffrey A. Breinholt

ExpressO

What if science developed technology that would eliminate violent crime on American streets entirely, without jeopardizing civil liberties or personal privacy? This article describes such a scenario, and uses it to take a critical look at some of legal commentary claiming that Americans are bound to lose their rights and privacy if they fail to object to modern tools of domestic security. It concludes that those who have criticize modern scientific applications to the security challenge are overlooking well-established legal doctrines, based on eccentric fears of technology and the nation's law enforcers.

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

‘Code’ And The Slow Erosion Of Privacy, Ronald Leenes, Bert-Jaap Koops

ExpressO

The notion of software code replacing legal code as a mechanism to control human behavior – ‘code as law’ – is often illustrated with examples in intellectual property and freedom of speech. This article examines the neglected issue of the impact of ‘code as law’ on privacy. To what extent is privacy-related ‘code’ being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects …

Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence

ExpressO

Reviving a Natural Right: The Freedom of Autonomy Amendment

Michael Anthony Lawrence

Something is wrong in twenty-first century America when it comes to recognizing certain “self-evident truths” of freedom identified in its founding document nearly 23 decades ago. In particular, the United States today fails to uphold the core principle of the Declaration of Independence that “all men are created equal: that they are endowed by their Creator with certain inalienable rights: that among these are life, liberty and the pursuit of happiness.” This description was more than just an accidental well-turned phrase – as demonstrated by the historical record, …

Material Vulnerabilities: Data Privacy, Corporate Information Security And Securities Regulation, Andrea M. Matwyshyn

ExpressO

This article undertakes a normative and empirical legal inquiry into the manner information security vulnerabilities are being addressed through law and in the marketplace. Specifically, this article questions the current legislative paradigm for information security regulation by presenting a critique grounded in information security and cryptography theory. Consequently, this article advocates shifting our regulatory approach to a process-based security paradigm that focuses on improving security of our system as a whole. Finally, this article argues that in order to accomplish this shift with least disruption to current legal and economic processes, expanding an existing set of well-functioning legal structures is …

Cyberspace Cartography: The Case Of On-Line Territorial Privacy, Daniel Benoliel

ExpressO

Territorial privacy, one of the central categories of privacy protection, involves setting limit boundaries on intrusion into an explicit space or locale. Initially, the Restatement (Second) of Torts, which defined the privacy tort of intrusion, as applied by courts, most notably designated two classes of excluded areas: “private” places in which the individual can expect to be free from intrusion, and “non-private” places, in which the individual does not have a recognized expectation of privacy. In the physical world, courts ultimately held almost uniformly that the tort of intrusion could not occur in a public place or in a place …

Transnational Administration: International Data Transfers Under The European Privacy Directive, Francesca Bignami

ExpressO

No abstract provided.

A Room Of One's Own: Morality And Sexual Privacy After Lawrence V. Texas, Marybeth Herald

ExpressO

No abstract provided.

A Gradual Shift In U.S. Privacy Laws Towards A Comprehensive Regime , Kamaal R. Zaidi

ExpressO

This paper examines the current trends in a predominantly sectoral U.S. privacy regime that appears to be becoming more comprehensive in nature with respect to data privacy protection. This trend has been greatly attributed to the European Union's comprehensive position on data privacy protection. This paper investigates the growth in U.S. data privacy protection in relation to federal and state legislative history, federal administrative procedures, and private industry efforts. This shift from sectoral to comprehensive regimes is significant in the backdrop of U.S-EU trade relations.