Law Commons^™

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace

Northwestern University Law Review

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

Closing The Data Gap: Protecting Biometric Information Under The Biometric Information Privacy Act And The California Consumer Protection Act, Eva-Maria Ghelardi

St. John's Law Review

(Excerpt)

Between May and June of 2014, Stacy Rosenbach bought her son, Alexander, a Six Flags season pass online. She submitted Alexander’s personal information and read that Alexander would complete the sign-up process at the park. No details described what the sign-up process would entail.

After showing his online receipt at Six Flags, Alexander was brought to an office to provide the customary thumb scan. Alexander’s thumb scan, along with the season pass card, was required to permit him to enter the various rides. He was not given any information about how his thumb scan would be stored or used …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

Personal Data Privacy And Protective Federal Legislation: An Exploration Of Constituent Position On The Need For Legislation To Control Data Reliant Organizations Collecting And Monetizing Internet-Obtained Personal Data, Giovanni De Meo

Dissertations

In the past twenty years, the business of online personal data collection has grown at the same rapid pace as the internet itself, fostering a multibillion-dollar personal data collection and commercialization industry. Unlike many other large industries, there has been no major federal legislation enacted to monitor or control the activities of organizations dealing in this flourishing industry. The combination of these factors together with the lack of prior research encouraged this research designed to understand how much voters know about this topic and whether there is interest in seeing legislation enacted to protect individual personal data privacy.

To address …

Private Lives At Home And Public Lives In Court: Protecting The Privacy Of Federal Judges' Home Addresses, Hannah Elias Sbaity

Journal of Intellectual Property Law

Targeted murders of federal judges and their families at their private homes date back to May 29, 1979. Most recently, in July 2020, Judge Esther Salas’s only son, Daniel, was murdered and her husband near-fatally shot at their home. Individuals wishing to inflict such harm or death at federal judges’ homes have been able to do so because of federal judges’ publicly available home addresses. Because personally identifying information (PII) is defined differently from statute to statute, home addresses largely remain public information in most states and can be found in real estate records, data broker websites, social media platforms, …

A Deep Dive Into Technical Encryption Concepts To Better Understand Cybersecurity & Data Privacy Legal & Policy Issues, Anthony Volini

Journal of Intellectual Property Law

Lawyers wishing to exercise a meaningful degree of leadership at the intersection of technology and the law could benefit greatly from a deep understanding of the use and application of encryption, considering it arises in so many legal scenarios. For example, in FTC v. Wyndham1 the defendant failed to implement nearly every conceivable cybersecurity control, including lack of encryption for stored data, resulting in multiple data breaches and a consequent FTC enforcement action for unfair and deceptive practices. Other examples of legal issues requiring use of encryption and other technology concepts include compliance with security requirements of GLBA & HIPAA, …

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Biometric Data Regulation And The Right Of Publicity: A Path To Regaining Autonomy Over Our Commodified Identity, Lisa Raimondi

University of Massachusetts Law Review

This Note explores how a right of publicity action might be used to address present day concerns regarding biometric data ownership rights where an individual’s likeness can essentially be bought and sold. As social networking and use of the internet has grown, so has the opportunity for people to engage with others and share their lives. However, that opportunity also comes with risk. More and more, people are required to accept the terms of use and privacy policies detailing how their biometric data will be collected and stored if they want to download and use certain technological applications. Most of …

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

The Commercialization Of Crime Solving: Ethical Implication Of Forensic Genetic Genealogy, Hannah Lee

Honors Theses

With the advancement of DNA technology and expansion of direct-to-consumer DNA services, a growing number of cold cases have been solved using a revolutionary new investigative method: familial DNA mapping. While the technique has been lauded by law enforcement as revolutionizing criminal identification, others are concerned by the privacy implications and impact on the family structure. In this thesis I will draw on communitarian, liberal rights, utilitarian, and social justice arguments for and against the practice. I conclude that this method has the potential to increase security and provide justice for victims and families, but absent comprehensive regulation and privacy …

Discussing Privacy In Sec Subpoena Practice After Carpenter V. United States, William A. Ballentine

Chicago-Kent Law Review

No abstract provided.

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo

Washington Law Review

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …

Whose Rights Matter More—Police Privacy Or A Defendant’S Right To A Fair Trial?, Laurie L. Levenson

Loyola of Los Angeles Law Review

The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of the people as expressed in the laws and give those accused of crime a fair trial.

– William O. Douglas

Pure Privacy, Jeffrey Bellin

Faculty Publications

n 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Dysregulating The Media: Digital Redlining, Privacy Erosion, And The Unintentional Deregulation Of American Media, Jon M. Garon

Faculty Scholarship

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 …

"Times They Are A Changin'" - Can The Ad Tech Industry Survive In A Privacy Conscious World?, Meaghan Donahue

Catholic University Journal of Law and Technology

The "ad tech ecosystem" is a web of interconnected technologies and intermediaries that facilitate targeted advertising based on consumer data, and supports the free internet while providing users with promotional content relevant to their interests. However, in recent years, lawmakers and consumer advocates have highlighted the dangers associated with the unregulated use of consumer data for advertising purposes, prompting a flurry of legislative action at both the state and federal levels. These various laws and proposed bills impose new challenges on the ad tech industry--threatening to fundamentally change the way the business operates. However, through innovation and creative thinking, the …

Meaningful Choice: A History Of Consent And Alternatives To The Consent Myth, Charlotte A. Tschider

Faculty Publications & Other Works

Although the first legal conceptions of commercial privacy were identified in Samuel Warren and Louis Brandeis’s foundational 1890 article, The Right to Privacy, conceptually, privacy has existed since as early as 1127 as a natural concern when navigating between personal and commercial spheres of life. As an extension of contract and tort law, two common relational legal models, U.S. privacy law emerged to buoy engagement in commercial enterprise, borrowing known legal conventions like consent and assent. Historically, however, international legal privacy frameworks involving consent ultimately diverged, with the European Union taking a more expansive view of legal justification for processing …

Legal Opacity: Artificial Intelligence’S Sticky Wicket, Charlotte A. Tschider

Faculty Publications & Other Works

Proponents of artificial intelligence (“AI”) transparency have carefully illustrated the many ways in which transparency may be beneficial to prevent safety and unfairness issues, to promote innovation, and to effectively provide recovery or support due process in lawsuits. However, impediments to transparency goals, described as opacity, or the “black-box” nature of AI, present significant issues for promoting these goals.

An undertheorized perspective on opacity is legal opacity, where competitive, and often discretionary legal choices, coupled with regulatory barriers create opacity. Although legal opacity does not specifically affect AI only, the combination of technical opacity in AI systems with legal opacity …

Ai's Legitimate Interest: Towards A Public Benefit Privacy Model, Charlotte A. Tschider

Faculty Publications & Other Works

Health data uses are on the rise. Increasingly more often, data are used for a variety of operational, diagnostic, and technical uses, as in the Internet of Health Things. Never has quality data been more necessary: large data stores now power the most advanced artificial intelligence applications, applications that may enable early diagnosis of chronic diseases and enable personalized medical treatment. These data, both personally identifiable and de-identified, have the potential to dramatically improve the quality, effectiveness, and safety of artificial intelligence.

Existing privacy laws do not 1) effectively protect the privacy interests of individuals and 2) provide the flexibility …

Law Library Blog (January 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Too Big To Protect: A Dodd-Frank Framework For Protecting 21st Century American Consumer Privacy Rights, Stanley A. Marciniak Iii

Duquesne Law Review

No abstract provided.

Cyber-Security, Privacy, And The Covid-19 Attenuation?, Vincent J. Samar

Journal of Legislation

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself …