Law Commons^™

The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson

Pepperdine Law Review

The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …

Content Moderation And The Least Cost Avoider, Paul Rosenzweig

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran

Catholic University Law Review

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …

Children Seen But Not Heard, Stacey B. Steinberg

UF Law Faculty Publications

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children’s upbringing with few exceptions. The principle governing this norm is that parents know best and will use their better knowledge to protect their children’s welfare.

The COVID-19 pandemic, public school rules, and children’s privacy laws offer modern examples of regulations in which the interests of parents and children may not align. Minors may want access to vaccines, despite a parent’s refusal to sign a consent form. Minors may want to talk to their …

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Washington Law Review

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Distinguishing Privacy Law: A Critique Of Privacy As Social Taxonomy, María P. Angel, Ryan Calo

Articles

What distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic …

Redefining The Injury-In-Fact: Treating Personally Identifying Information As Bailed Property, Austin Headrick

Georgia Law Review

There is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been …

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

Eavesdropping: The Forgotten Public Nuisance In The Age Of Alexa, Julia Keller

Vanderbilt Law Review

Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

The Trade Origins Of Privacy Law, Anupam Chander

Georgetown Law Faculty Publications and Other Works

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …

Unavoidability In U.S. Privacy Law, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Why is U.S. privacy law structured the way it is, with a series of sectoral laws rather than a cross-sectoral law or laws? Why does U.S. privacy law protect information shared in certain contexts—such as information shared with an attorney, a healthcare provider, or a financial provider—rather than particular types of information? One possibility is that sectoral laws apply to contexts in which people typically share highly “sensitive” information containing intimate secrets or with the potential to harm them financially or psychologically.

But this Article argues that there is something else at play—that in fact, an under-discussed and underappreciated factor …

Fintech Lending In India: Taking Stock Of Implications For Privacy And Autonomy, Vidushi Marda, Amber Sinha

Indian Journal of Law and Technology

In the last five years, the Fintech sector has thrived in India, with Machine Learning (ML) driven credit scoring based on alternative data, emerging as a growing segment. The credit scoring industry in India needs to be viewed in light of a careful examination of rights, inclusion, appropriate safeguards and discrimination, currently missing from the discourse and practices. In this paper, we explain how ML-based credit scoring works, and the regulatory and commercial factors that have enabled and impeded its growth in India. Through legal and technological analysis, richened by insights from qualitative interviews with entrepreneurs and practitioners, we provide …

Our Changing Reality: The Metaverse And The Importance Of Privacy Regulations In The United States, Anushkay Raza

Global Business Law Review

This Note discusses the legal and pressing digital challenges that arise in connection with the growing use of virtual reality, and more specifically, the metaverse. As this digital realm becomes more integrated into our daily lives, the United States should look towards creating a federal privacy law that protects fundamental individual privacy rights. This Note argues that congress should emulate the European Union's privacy regulations, and further, balances the potential consequences and benefits of adapting European regulations within the United Sates. Finally, this Note provides drafting considerations of future lawyers who will not only be dealing with the rise of …

Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield

Vanderbilt Journal of Entertainment & Technology Law

As the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Pace Law Review

No abstract provided.

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

Keep Your Fingerprints To Yourself: New York Needs A Biometric Privacy Law, Brendan Mcnerney

St. John's Law Review

(Excerpt)

Imagine walking into a store, picking something up, and just walking out. No longer is this shoplifting, it is legal. In 2016, Amazon introduced their “Just Walk Out” technology in Seattle. “Just Walk Out” uses cameras located throughout the store to monitor shoppers, document what they pick up, and automatically charge that shoppers’ Amazon account when they leave the store. Recently, Amazon started selling “Just Walk Out” technology to other retailers. Since then, retailers have become increasingly interested in collecting and using customers’ “biometric identifiers and information.” Generally, “biometrics” is used to refer to “measurable human biological and behavioral …

A Trusted Framework For Cross-Border Data Flows, Alex Joel

Joint PIJIP/TLS Research Paper Series

The German Marshall Fund of the United States (GMF), in cooperation with the Tech, Law and Security Program (TLS) of the American University Washington College of Law, and with support from Microsoft, convened a Global Taskforce to Promote Trusted Sharing of Data comprising experts from civil society, academia, and industry to submit proposals for harmonizing approaches to global data use and sharing. Former US Ambassador to the Organisation for Economic Co-operation and Development (OECD) and GMF Distinguished Fellow Karen Kornbluh and Microsoft Chief Privacy Officer and Corporate Vice President Julie Brill co-chaired the taskforce; TLS Senior Project Director Alex Joel …

Encouraging Public Access To Pharmaceuticals Through Modified Protection Of Clinical Trial Data, Scott M. Nolan Ii

IP Theory

Part I of this Article investigates the development of pharmaceuticals and clinical trial data with a focus on patent and data protection. Part II evaluates the effects of protection and the challenges it poses to widespread public pharmaceutical access. Part III discusses two scholarly approaches to the public access issue that focus on clinical data protection and their associated challenges. In light of these scholarly works, Part IV suggests a new approach to clinical trial data protection that aims to improve public pharmaceutical access while maintaining the incentives to invent for drug developers.

Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …

The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim

University of Miami Inter-American Law Review

Genetic information is intimate and telling data warranting privacy in public and private realms. The privacy protections offered in the United States and Canada vastly differ when it comes to genetic privacy. Search and seizure law mirrors the privacy gap in the countries, as well as their treatment of DNA database information.

This note explores the foreshadowing of the creation of genetic privacy laws and their varying levels of protection based on the way private information was treated by state actors through search and seizure caselaw, the creation of legal precedent, and the treatment of intimate personal data in the …

National Telecommunications And Information Administration: Comments From Researchers At Boston University And The University Of Chicago, Ran Canetti, Aloni Cohen, Chris Conley, Mark Crovella, Stacey Dogan, Marco Gaboardi, Woodrow Hartzog, Rory Van Loo, Christopher Robertson, Katharine B. Silbaugh

Faculty Scholarship

These comments were composed by an interdisciplinary group of legal, computer science, and data science faculty and researchers at Boston University and the University of Chicago. This group collaborates on research projects that grapple with the legal, policy, and ethical implications of the use of algorithms and digital innovation in general, and more specifically regarding the use of online platforms, machine learning algorithms for classification, prediction, and decision making, and generative AI. Specific areas of expertise include the functionality and impact of recommendation systems; the development of Privacy Enhancing Technologies (PETs) and their relationship to privacy and data security laws; …

Femtechnodystopia, Leah R. Fowler, Michael Ulrich

Faculty Scholarship

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral …

Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo

Emancipations: A Journal of Critical Social Analysis

Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.

Liberal feminists argued that in …

Aclu V. Clearview Ai, Inc.,, Isra Ahmed

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.

Vanderbilt Law School Faculty Publications

As recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how …