Law Commons^™

Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), Scott Skinner-Thompson

Research Data

This document, Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), 93 Wash. L. Rev. Online 2051 (2018), https://www.law.uw.edu/wlr/online-edition/scott-skinner-thompson, was published as an electronic supplement to the empirical study, Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051 (2018), available at https://scholar.law.colorado.edu/articles/1218/.

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

Privacy Spaces, Bert-Jaap Koops

West Virginia Law Review

Privacy literature contains conceptualizations of privacy in relation to role-playing and identity construction, and in relation to access control and boundary-management. In this paper, I combine both strands to introduce the concept of privacy spaces: spaces in which you can play, in your own way, the relevant role(s) you have in social life. Drawing from privacy conceptions in legal scholarship, philosophy, sociology, anthropology, human geography, and psychology, a systematic overview of traditional privacy spaces is offered, including mental bubbles, the body, personal space, personal writings, the home, private conversation space, cars, stalls, intimacy bubbles, professional black boxes, coffee house spaces, …

Better Late Than Never: Bringing The Data Security Regulatory Environment Into The Modern Era, Jacob Holden

West Virginia Law Review

No abstract provided.

Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond

St. John's Law Review

(Excerpt)

This Article suggests that we would benefit if we would protect privacy by sometimes requiring tactful inattention by potential users rather than total secrecy by the target. That is, some legal privacy protections should stop emphasizing secrecy and instead emphasize the appropriate uses of personally identifiable and often sensitive information by gelling tactful inattention into legal standards. Culturally, such an expansion may be difficult, as we tend to a “finders-keepers” attitude towards data. However, given technology’s ability to dissolve routine barriers, if we require others to leave some information out of some equations, we may be able to retain …

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

Common Sense: Rethinking The New Common Rule's Week Protections For Human Subjects, Ahsin Azim

Vanderbilt Law Review

Since 1991, the Federal Policy for the Protection of Human Subjects, known as the "Common Rule," has protected the identifiable private information of human subjects who participate in federally funded research initiatives. Although the research landscape has drastically changed since 1991, the Common Rule has remained mostly unchanged since its promulgation. In an effort to modernize the Common Rule, the Federal Policy for the Protection of Human Subjects Final Rule ("Final Rule') was published on January 19, 2017. The Final Rule, however, decreases human-subject protections by increasing access to identifiable data with limited administrative oversight. Accordingly, the Final Rule demands …

Mining For Children’S Data In Today’S Digital World, Damin Park

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

A Poor Mother's Right To Privacy: A Review, Danielle K. Citron

Faculty Scholarship

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the …

The Race For Privacy: Technological Evolution Outpacing Judicial Interpretations Of The Fourth Amendment: Playpen, The Dark Web, And Governmental Hacking, Wade Williams

Florida State University Law Review

Despite complying with the new amendments to Federal Rule of Criminal Procedure 41, the Federal Bureau of Investigation's (FBI) broad authorization to remotely access computers at anytime and anywhere within the United States is at odds with the reasonableness and particularity requirements of the Fourth Amendment. The exponential growth of technology has made life in the twenty-first century something our ancestors would envy, but the idea of allowing the government to perform unknown and undetected searches across the United States, especially in the hidden world of cyberspace, would have our founding fathers turning in their graves. Recognition is owed to …

Privacy Regulation In The Age Of Biometrics That Deal With A New World Order Of Information, Michael Monajemi

University of Miami International and Comparative Law Review

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.

A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle

St. Mary's Law Journal

The Internet provides trial attorneys an additional tool to investigate the backgrounds of prospective jurors during voir dire. Online searches of a person’s name and social media accounts can reveal information that could be used as grounds for a challenge for cause or to facilitate intelligent use of peremptory strikes. Texas lawmakers have not yet provided any official guidance as to whether attorneys can investigate prospective jurors online or how they might do so, should it be allowed. Texas’s current voir dire structure, judicial opinions, and ethics opinions, together, support the notion that Texas trial attorneys should be given opportunities …

Against Notice And Choice: The Manifest Failure Of The Proceduralist Paradigm To Protect Privacy Online (Or Anywhere Else), John A. Rothchild

Cleveland State Law Review

Notice and choice are the foundational principles underlying the regulation of privacy in online transactions and in most other situations in which individuals interact with the government and commercial interests. These principles mean that before collecting personally identifiable information (PII) from an individual, the collector must provide the individual with a disclosure (notice) of what PII it proposes to collect and how it proposes to use that information. That knowledge enables the individual to make a rational decision (choice) about whether to allow that collection of information, generally by declining to enter into the transaction or, in some situations, by …

Big Brother Is Watching: When Should Georgia Get Involved In Issues Of Family Privacy To Protect Children’S Liberties?, Michelle Wilco

Georgia State University Law Review

Alecia Faith Pennington (Faith) did not officially exist until she was nineteen. Faith’s conservative, religious parents, Lisa and James, raised their nine children on the family farm just outside Kerrville, Texas, and kept their family as self-sufficient and separate from the rest of the world as possible.

The family was very insular; the parents home schooled all of the children, and the family rarely left their home, with the rare exception of going to church. Lisa and James also prohibited their children from using the Internet until they were eighteen, at which point they were only allowed limited access to …

The Struggle To Define Privacy Rights And Liabilities In A Digital World And The Unfortunate Role Of Constitutional Standing, Juan Olano

University of Miami Law Review

Today’s world runs on data. The creation and improvement of technological products and services depend on the exchange of data between people and companies. As people’s lives become more digitized, companies can collect, store, and analyze more data, and in turn, create better technology. But, because consumer data can be very sensitive (think Social Security numbers, GPS location, fingerprint recognition, etc.) this cyclical exchange comes with serious privacy risks; especially in light of more frequent and sophisticated cyberattacks. This creates a face-off between technological growth and privacy rights. While it makes sense that people should be willing to subside some …

The Language-Game Of Privacy, Joshua A.T. Fairfield

Joshua A.T. Fairfield

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.

Information And The Regulatory Landscape: A Growing Need To Reconsider Existing Legal Frameworks, Anjanette H. Raymond

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

The Language-Game Of Privacy, Joshua A.T. Fairfield

Michigan Law Review

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.

Survey Of (Mostly Outdated And Often Ineffective) Laws Affecting Work-Related Monitoring, Robert Sprague

Chicago-Kent Law Review

This article reviews various laws that affect work-related monitoring. It reveals that most of our privacy laws were adopted well before smartphones and the Internet became ubiquitous; they still hunt for physical secluded locations; and, because they are based on reasonable expectations of privacy, they can easily be circumvented by employer policies that eliminate that expectation by informing workers they have no right to privacy in the workplace. This article concludes that the future—indeed the present—does not bode well for worker privacy.

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

Risk And Anxiety: A Theory Of Data Breach Harms, Danielle K. Citron, Daniel Solove

Faculty Scholarship

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Privacy In The Age Of The Hacker: Balancing Global Privacy And Data Security Law, Cunningham, Mckay, Mckay Cunningham

McKay Cunningham

The twin goals of privacy and data security share a fascinating symbiotic relationship: too much of one undermines the other. The international regulatory climate, embodied principally by the European Union’s 1995 Directive, increasingly promotes privacy. In the last two decades, fifty-three countries enacted national legislation largely patterned after the E.U. Directive. These laws, by and large, protect privacy by restricting data processing and data transfers.

At the same time, hacking, malware, and other cyber-threats continue to grow in frequency and sophistication. In 2010, one security firm recorded 286 million variants of malware and reported that 232.4 million identities were exposed. …

How Different Are Young Adults From Older Adults When It Comes To Information Privacy Attitudes & Policies?, Chris Jay Hoofnagle, Jennifer King, Su Li, Joseph Turow

Chris Jay Hoofnagle

Media reports teem with stories of young people posting salacious photos online, writing about alcohol-fueled misdeeds on social networking sites, and publicizing other ill-considered escapades that may haunt them in the future. These anecdotes are interpreted as representing a generation-wide shift in attitude toward information privacy. Many commentators therefore claim that young people “are less concerned with maintaining privacy than older people are.” Surprisingly, though, few empirical investigations have explored the privacy attitudes of young adults. This report is among the first quantitative studies evaluating young adults’ attitudes. It demonstrates that the picture is more nuanced than portrayed in the …

Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond

All Faculty Scholarship

No abstract provided.

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Ferpa Close-Up: When Video Captures Violence And Injury, Richard J. Peltz-Steele, Kitty L. Cone

Faculty Publications

Federal privacy law is all to often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing …

Reading Reflection Privacy And Security, Paul Sujith Rayi

School of Information Studies - Post-doc and Student Scholarship

No abstract provided.

Borders And Bits, Jennifer Daskal

Vanderbilt Law Review

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …