Law Commons^™

The Laws Of Image, Samantha Barbas

Samantha Barbas

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others. The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution …

The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas

Samantha Barbas

The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …

Testimony @ House Energy And Commerce Subcommittee On Digital Commerce And Consumer Protection Hearing; "21st Century Trade Barriers: Protectionist Cross Border Data Flow Policies Impact On U.S. Jobs.", Jennifer Daskal

Jennifer Daskal

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Brian Larson

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Privacy And The Alaska Constitution: Failing To Fulfill The Promise, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

Lori B. Andrews

Introduction, Tracy Mitrano

Tracy Mitrano

No abstract provided.

Chapter Five: The San Bernardino Iphone Case, Tracy Mitrano

Tracy Mitrano

Chapter Two: Privacy, Tracy Mitrano

Tracy Mitrano

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson

Stephen E Henderson

Designing Surveillance Law, Patricia L. Bellia

Patricia L. Bellia

As communications surveillance techniques become increasingly important in government efforts to detect and thwart criminal and terrorist activities, questions of how to reconcile privacy and law enforcement interests take on paramount importance. These questions have institutional as well as substantive dimensions. That is, the issue is not simply what the limits on communications surveillance should be, but who should set them — courts through application of the Fourth Amendment or legislatures through statutes and the oversight process? The scholarly literature offers divergent positive and normative perspectives on these questions.

For most scholars, the question of who should regulate communications surveillance …

Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus

John D. McCamus

In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …

If You Fly A Drone, So Can Police, Stephen E. Henderson

Stephen E Henderson

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

Lyrissa Barnett Lidsky

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 …

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Sonia Katyal

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Sonia Katyal

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen E. Henderson

Stephen E Henderson

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

David Kaye

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …

A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye

David Kaye

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for …

Employee Electronic Communications In A Boundaryless World, Robert Sprague

Robert Sprague

Copyrights, Privacy, And The Blockchain, Tom W. Bell

Tom W. Bell

Private Technology (Foreword), Daniel Harris Brean

Daniel Harris Brean

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson

Stephen E Henderson

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Stephen E Henderson

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

Are They Worth Reading? An In-Depth Analysis Of Online Trackers’ Privacy Policies, Candice Hoke, Lorrie Faith Cranor, Pedro Giovanni Leon, Alyssa Au

Lorrie F Cranor

We analyzed the privacy policies of 75 online tracking companies with the goal of assessing whether they contain information relevant for users to make privacy decisions. We compared privacy policies from large companies, companies that are members of self-regulatory organizations, and nonmember companies and found that many of them are silent with regard to important consumer-relevant practices including the collection and use of sensitive information and linkage of tracking data with personally-identifiable information. We evaluated these policies against self-regulatory guidelines and found that many policies are not fully compliant. Furthermore, the overly general requirements established in those guidelines allow companies …

El Derecho Al Secreto Y La Teoría Del Cono, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El presente estudio contiene una teoría general del derecho de los secretos, que sirve para determinar el peso específico de cada secreto, a efectos de realizar una correcta ponderación de derechos. La teoría explica las relaciones que existen entre los diversos tipos de secreto, utilizando y desarrollando la teoría del cono de García Morente, que se muestra como una herramienta apropiada para dilucidar cuándo hay derecho al secreto, cuando no lo hay y en qué medida. La metodología utilizada es inductiva. El análisis se estructura de la siguiente manera: (i) se recapitula la teoría general del derecho de los secretos; …

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

Jon L. Mills

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 …

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

Omri Y Marian

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 …

The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth

Sara Smyth

This article examines whether Canadian environmental law and policy could serve as a model for cyber crime regulation. A wide variety of offences are now committed through digital technologies, including thievery, identity theft, fraud, the misdirection of communications, intellectual property theft, espionage, system disruption, the destruction of data, money laundering, hacktivism, and terrorism, among others. The focus of this Article is on the problem of data security breaches, which target businesses and consumers. Following the Introduction, Part I provides an overview of the parallels that can be drawn between threats in the natural environment and on the Internet. Both disciplines …