Law Commons^™

Target(Ed) Advertising, Derek E. Bambauer

UF Law Faculty Publications

Targeted advertising—using data about consumers to customize the ads they receive—is deeply controversial. It also creates a regulatory quandary. Targeted ads generate more money than untargeted ones for apps and online platforms. Apps and platforms depend on this revenue stream to offer free services to users, if not for their financial viability altogether. However, targeted advertising also generates significant privacy risks and consumer resentment. Despite sustained attention to this issue, neither legal scholars nor policymakers have crafted interventions that address both concerns, and existing regulatory regimes for targeted advertising have critical gaps.

This Article makes three key contributions to the …

Privacy Implications Of Central Bank Digital Currency, Jiaying Jiang

UF Law Faculty Publications

One hundred five countries, representing over 95 percent of global GDP, are exploring central bank digital currencies (CBDCs), a new form of digital money that is different from privately issued cryptocurrencies and stablecoins. As central banks worldwide grapple with CBDC design options, privacy has become a critical feature and concern. Many central banks, government agencies, NGOs, think tanks, and even the general public have already addressed the importance of privacy and called for privacy in CBDC systems. Some economists, computer scientists, engineers, and legal scholars have already moved forward to design a privacy-preserving CBDC.

However, when addressing the importance and …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

UF Law Faculty Publications

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on post-adoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is both related to social media’s impact on family life and fundamental shifts in our understandings about privacy more generally. Understanding the legal rights of parents and children in these circumstances is both a novel and underexplored issue for family law, constitutional law, and …

Ad Tech & The Future Of Legal Ethics, Seth Katsuya Endo

UF Law Faculty Publications

Privacy scholars have extensively studied online behavioral advertising, which uses Big Data to target individuals based on their characteristics and behaviors. This literature identifies several new risks presented by online behavioral advertising and theorizes about how consumer protection law should respond. A new wave of this scholarship contemplates applying fiduciary duties to information-collecting entities like Facebook and Google.

Meanwhile, lawyers—quintessential fiduciaries—already use online behavioral advertising to find clients. For example, a medical malpractice firm directs its advertising to Facebook users who are near nursing homes with bad reviews. And, in 2020, New York became the first jurisdiction to approve lawyers’ …

Secrets Of The Deep: Defining Privacy Underwater, Annie Brett

UF Law Faculty Publications

The drones are coming, But not just to your neighborhood skies – to the world’s oceans. From recreational robots designed to autonomously follow divers and record video of them to low-cost, remotely operated submersibles that put ocean exploration in the hands of the general public to sophisticated military submersibles able to autonomously gather intelligence throughout the oceans, the underwater drone market is exploding. But unlike on land, this explosion has not been accompanied by similar discussion of privacy concerns. Instead, the ocean’s rapid shift away from an inaccessible operational sanctuary is one that is happening largely silently. And it is …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

UF Law Faculty Publications

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

Privacy Revisited: A Global Perspective On The Right To Be Left Alone, Jon L. Mills

UF Law Faculty Publications

Reviewing: Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford University Press 2016).

Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

UF Law Faculty Publications

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment. In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …

Sharenting: Children's Privacy In The Age Of Social Media, Stacey B. Steinberg

UF Law Faculty Publications

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These …

Reining In Internet-Age Expansion Of Exemption 7(C): Towards A Tort Law Approach For Ferreting Out Legitimate Privacy Concerns And Unwarranted Intrusions Under Foia, Clay Calvert, Austin Vining, Sebastian Zarate

UF Law Faculty Publications

Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of …

Protecting The Public From Itself: Paternalism And Irony In Defining Newsworthiness, Clay Calvert

UF Law Faculty Publications

In a speech more than 150 years ago, author and British politician Benjamin Disraeli' proclaimed it "much easier to be critical than to be correct." Viewed in that sagacious light, this article surely traverses the low road, not the high one. It offers, in discussion-sparking spirit, a few slight criticisms of Professor Amy Gajda's conclusions and suggestions in her timely, meticulously researched and example-laden book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Specifically, Part I of this Article encapsulates the problems identified by Professor Gajda for journalism today - and, more broadly, troubles for a …

The Right To Silence V. The Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones

UF Law Faculty Publications

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based …

A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian

UF Law Faculty Publications

This Essay proposes a conceptual framework for the regulation of transactions involving cryptocurrencies. Cryptocurrencies offer tremendous opportunities for innovation and development but are also uniquely suited to facilitate illicit behavior. The regulatory framework suggested herein is intended to support (or at least not impair) cryptocurrencies’ innovative potential. At the same time, it aims to disrupt cryptocurrencies’ criminal utility. To achieve these purposes, this Essay proposes a regulatory framework that imposes costs on the characteristics of cryptocurrencies that make them especially useful for criminal behavior (in particular, anonymity) but does not impose costs on characteristics that are at the core of …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Executive Trade Secrets, Tom C.W. Lin

UF Law Faculty Publications

The law discriminates among a corporation’s secrets. In the eyes of the law, commercial secrets of corporations are legitimate secrets that deserve legal protection and nondisclosure, but personal secrets of executives are not as deserving of legal protection and nondisclosure. This divergent treatment of secrets has resulted in a legal landscape of perplexing, paradoxical paths for corporations and executives concerning executive disclosures — a precarious landscape that has left corporations and investors dangerously susceptible to revelations of private facts that shock market valuation and institutional stability.

This Article explores this divergent treatment of secrets in the context of public corporations …

Undressing The Ceo: Disclosing Private, Material Matters Of Public Company Executives, Tom C.W. Lin

UF Law Faculty Publications

Disclosing material private matters of public company executives is a difficult and complex but sometimes necessary act. Advocates that favor more disclosure and advocates that favor more privacy both have many legitimate arguments and concerns. This article argues that when viewed in the context of contemporary capital markets, the enhanced role of the executive, and the modern media, additional disclosure from executives about material, private matters is desirable. In support of this argument, this article proposes a principle-based approach for executive disclosure that affords companies and executives reasonable deference on what to disclose and how to disclose it, while simultaneously …

Court-System Transparency, Lynn M. Lopucki

UF Law Faculty Publications

This article applies systems analysis to two ends. First, it identifies simple changes that would make the court system transparent. Second, it projects transparency's consequences. Transparency means that both the patterns across, and details of, case files are revealed to policymakers, litigants, and the public in easily understood forms. Government must make two changes to achieve court system transparency. The first is to remove the existing restrictions on the electronic release of court documents, including the requirements for registration, separate requests for each document, and monetary payment. The second - already being implemented in the federal courts - is to …

Algorithmic Entities, Lynn M. Lopucki

UF Law Faculty Publications

In a 2014 article, Professor Shawn Bayern demonstrated that anyone can confer legal personhood on an autonomous computer algorithm by putting it in control of a limited liability company. Bayern’s demonstration coincided with the development of “autonomous” online businesses that operate independently of their human owners—accepting payments in online currencies and contracting with human agents to perform the off-line aspects of their businesses. About the same time, leading technologists Elon Musk, Bill Gates, and Stephen Hawking said that they regard human-level artificial intelligence as an existential threat to the human race. This Article argues that algorithmic entities—legal entities that have …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

UF Law Faculty Publications

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case. Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today. Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

UF Law Faculty Publications

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

Did Privacy Cause Identity Theft?, Lynn M. Lopucki

UF Law Faculty Publications

This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim. The essay compares two proposed solutions: Professor Daniel Soloves' architectural approach and the author's Public Identity System. Both would make the identification process transparent to the person identified, put imposters at risk by requiring personal appearances, and ban the use of social security numbers as passwords. But the …

Human Identification Theory And The Identity Theft Problem, Lynn M. Lopucki

UF Law Faculty Publications

This paper builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with the characteristics of a person observed in a second observation to determine whether they are the same person. From the theory it follows that a characteristic used for identification in the credit reporting system, such as social security number, mother's maiden name and date …

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

Sex, Lies, And Genetic Testing: What Are Your Rights To Privacy In Florida?, Jon L. Mills

UF Law Faculty Publications

Individual and human rights in this country have evolved from national movements and national standards. The Fourteenth Amendment's application of rights to the states was a landmark in human rights, guaranteeing all citizens, no matter their state of residence, a baseline of protection. The Federal Constitution was the protector-“states' rights” was the code phrase for discrimination. But in the American crucible of cultural diversity a national standard for “community” may result in the lowest common denominator or a definition based on averaging. Would it not be better when the most individual of rights, privacy, is implicated to define that right …

Rip To Irp - Money Laundering And Drug Trafficking Controls Score A Knockout Victory Over Bank Secrecy, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Article reviews the evolution of bank secrecy laws and comments on the erosion of rights effected by the domestic and international efforts to curb drug trafficking and money laundering. Part II reviews the evolution of bank secrecy laws in the international sphere and views the origins of the individuals' right to financial privacy. Specifically, Part II focuses on the laws of Switzerland and England to show the bases and proliferation of secrecy protections. Part III provides the background of the status of financial privacy in the United States. The following two parts describe initiatives aimed at eliminating drug trafficking …

Prenatal Caretaking: Limits Of State Intervention With And Without Roe, Sharon E. Rush

UF Law Faculty Publications

With or without Roe, difficult questions regarding the state's role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman's pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman's right of privacy outside of abortion have not been answered by the Supreme Court.