Law Commons^™

Leave Me Alone! The Delicate Balance Of Privacy And Commercial Speech In The Evolving Do-Not-Call Registry, Andrew L. Sullivant

Federal Communications Law Journal

In 2004, the Tenth Circuit held that although the newly enacted do-not-call registry restricted commercial speech, the restriction was narrowly tailored and thus fell within the bounds of the Constitution. Since that decision, the Federal Trade Commission has amended the do-not-call registry to abolish the provision that required individuals to re-register every five years, and in 2008, Congress passed the amendment. This Note argues that the five-year reregistration requirement is a substantial factor in the registry's narrow tailoring. By removing the requirement, questions as to the restriction's constitutionality reemerge.

The Sense And Nonsense Of Criminalizing Transfers Of Obscene Material: Criminalizing Privacy Violations (2008) 26 Singapore Law Review 126, Dennis J. Baker

Dr. Dennis J Baker

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of …

Unfair Warning: Breach Notification In The Fcc’S Enhanced Telephone Records Safeguards, Stephen L. Markus

Cornell Journal of Law and Public Policy

No abstract provided.

Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey

Dalhousie Law Journal

Canadian jurisprudence has explicitly recognized the impact of child pornography on the privacy rights of the children abused in its production. In contrast, it has generally not analyzed other forms of harmful expression, such as hate propaganda and obscenity,to be violations of the privacy rights of those targeted. In a previous article, the author suggested that this distinction in the jurisprudence reflected the relative ease with which the privacy interests of the individual children whose abuse is documented inchild pornography meshed with the prevalent Western approach toprivacy as a negative individual liberty against intrusion. Noting the historic role that the …

Porn Air, Timothy Zick

Popular Media

No abstract provided.

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Say Cheese! Examining The Constitutionality Of Photostops, Molly Bruder

American University Law Review

No abstract provided.

10th Annual Open Government Summit: The Access To Public Records Act & The Open Meetings Act, 2008, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Voluntary Disclosure Of Hiv/Aids Status By A Public Health Official To Law Enforcement Agents: The Shortcomings Of South Dakota's Law Section 34-22-12.1(6) And Traditional Public Health Measures, Daniel C. Moon

Daniel C Moon

Section 34-22-12.1(6) of South Dakota’s Codified Laws grants the Secretary of the Health Department to disclose private medical information regarding an individual’s HIV/AIDS status if he or she thinks that that individual is engaged in intentionally infecting another person with HIV/AIDS. This law is problematic because it does not (1) adequately protect an individual’s privacy, and (2) achieve its public health goals. From the privacy aspect, it provides less protection to information regarding an individual’s HIV/AIDS status from three aspects: (1) less protection than the same information possessed by covered entities under the Health Insurance Portability and Accountability Act (“HIPAA”), …

Gonzales V. Carhart: Continuing The Class Critique Of The Reproductive Rights Doctrine And Movement, Pamela Bridgwater

South Carolina Law Review

No abstract provided.

Network Neutrality: Laissez Faire Approach Or Not?, Rebecca Wong Dr

Dr Rebecca Wong

The paper discusses the topical subject of network neutrality, from a US and European legal perspective. Whilst acknowledging the plethora of literature on network neutrality, it argues that regulation in favour of network neutrality should not be confined with the US/European borders but that network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality, before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the US to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, …

Accidental Privacy Spills, James Grimmelmann

James Grimmelmann

The realm of privacy law has more crimes than criminals, more wrongs than wrongdoers. Some invasions of privacy are neither intentional nor negligent; it's easy to recognize the harm, but hard to pin the blame. Laurie Garrett attended the World Economic Forum as a journalist and wrote a private email to a few close friends, only to see that email end up on a widely-read weblog.

This essay tells the story of that inevitable accident: an "accident" in that it needn't have happened, but "inevitable" in that there's no principled way to prevent similar misunderstandings from recurring, again and again …

The Problems With The Reporter's Privilege, Eliason D. Eliason

American University Law Review

No abstract provided.

Reforming Fourth Amendment Privacy Doctrine, Jim Harper

American University Law Review

No abstract provided.

The Newest Way To Screen Job Applicants: A Social Networker's Nightmare, Carly Brandenburg

Federal Communications Law Journal

Social networking is an easy way to share information with friends, family, and the company that just offered you an interview. Employers are utilizing all of the tools available to them as they strive to hire the right people, and this means that social networkers may need to self censor in order to protect their information from falling into the wrong hands. This Note questions whether social networkers can legally expect or enjoy any right to privacy with respect to their online postings.

Manipulating Andhiding Terrorist Content On The Internet: Legal And Tradecraft Issues, Jack F. Williams

Jack F. Williams

The global war on terror (“GWOT”) is being fought on many levels. In addition to traditional terror and counterterror activity, both sides are engaged in a public relations and propaganda war, employing the media, willingly and unwillingly, to support their positions. Hovering over these war campaigns are information technologies, which include the Internet. This article provides an introduction to various online content concealing practices that have been employed by those seeking to conceal or limit access to information on the Internet, including terrorist organizations. Further, there is a discussion on tracking and monitoring of website visitors. After reviewing open source …

Computers, Search Warrants, And The Private Papers Exemption, David E. Clark

David E Clark

Police increasingly seek search warrants for information stored on personal computers. Georgia law, OCGA 17-5-21(a)(5) prohibits the issuance of a search warrant for "private papers," which include any documents subject to a recognized privilege (attorney-client, doctor-patient). This statute, and other technological factors, raise the risk of a computer search warrant being ruled overbroad unless it is carefully drafted. A constitutionally sound format for a computer search warrant application is given, along with guidelines for drafting and executing a warrant for digital property believed to be evidence of a crime.

'In Hindsight Everything Is Foreseeable': Ecological Harms And The Public/Private Divide, Howard Schweber

Howard Schweber

In the classic liberal language of privacy rights, individuals’ freedom should extend as far as possible consistent with the limits of the harm principle. In Part I, this article uses an examination of cases involving states’ attempts to regulate the conduct of pregnant women to argue that the application of ecological models of causation and harm expand the harm principle to the point where it destabilizes the idea of privacy rights. In Parts II and III the article presents a brief discussion of the development of ecological models of harm in American law and the replacement of a public-private divide …

Privacy Protection: When Is “Adequate” Actually Adequate?, Nikhil S. Palekar

Duke Journal of Comparative & International Law

No abstract provided.

Missing Privacy Through Individuation: The Treatment Of Privacy Law In The Canadian Case Law On Hate, Obscenity, And Child Pornography, Jane Bailey

Dalhousie Law Journal

Privacy is approached differently in the Canadian case law on child pornography than in hate propaganda and obscenity cases. Privacy analyses in all three contexts focus considerable attention on the interests of the individuals accused, particularly in relation to minimizing state intrusion on private spheres of activity However, the privacy interests of the.equality-seeking communities targeted by these forms of communication are more directly addressed in child pornography cases than in hate propaganda and obscenity cases. One possible explanation for this difference is that hate propaganda and obscenity simply do not affect the privacy interests of targeted groups and their members. …

Measuring Identity Theft At Top Banks (Version 1.5), Chris Hoofnagle

Chris Jay Hoofnagle

There is no reliable way for consumers, regulators, and businesses to assess the relative rates of identity fraud at major financial institutions. This lack of information prevents a consumer market for bank safety from emerging. As part of a multiple strategy approach to obtaining more actionable data on identity theft, the Freedom of Information Act was used to obtain complaint data submitted by victims in 2006 to the Federal Trade Commission. This complaint data identifies the institution where impostors established fraudulent accounts or affected existing accounts in the name of the victim. The data were aggregated and used to create …

Omniveillance, Privacy In Public, And The Right To Your Digital Identity: A Tort For Recording And Disseminating An Individual’S Image Over The Internet, Josh Blackman

Josh Blackman

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends …

Privacy And Funeral Protests, Christina E. Wells

Christina E. Wells

This article examines the free speech implications of funeral protest statutes. Enacted in response to protests by the Westboro Baptist Church, such statutes restrict a broad array of expressive activity, including peaceful protests. This article focuses on the states’ interest underlying such statutes – protecting mourners’ right to be free of unwanted intrusions while at funeral services. While few would argue against protecting funeral services from intrusive protests, these statutes go far beyond that notion. A careful examination reveals that the statutes are designed to protect mourners from offensive rather than intrusive protests. As such, they do not conceive of …

The Microsoft-Yahoo Merger: Yes, Privacy Is An Antitrust Concern, Robert H. Lande

All Faculty Scholarship

Privacy and antitrust? Isn't antitrust only supposed to be concerned with price? Well, no. Antitrust is actually about consumer choice, and price is only one type of choice. The ultimate purpose of the antitrust laws is to help ensure that the free market will bring to consumers everything they want from competition. This starts with competitive prices, of course, but consumers also want an optimal level of variety, innovation, quality, and other forms of non-price competition. Including, in the Google-Doubleclick and Microsoft-Yahoo transactions, privacy protection.

What Google Knows: Privacy And Internet Search Engines, Omer Tene

Omer Tene

Search engines are the dominant actors on the Internet today and Google is undoubtedly, the undisputed king of search, evoking ambivalent feelings. It is adored for its ingenuity, simple, modest-looking interface, and superb services offered at no (evident) cost. Yet increasingly, it is feared by privacy advocates who view it as a private sector "big brother," posing what one commentator dubbed “the most difficult privacy problem in all of human history.” Google is an informational gatekeeper, harboring previously unimaginable riches of personal data. Billions of search queries stream across Google servers each month, the aggregate thoughtstream of humankind online. Google …

Privacy 3.0--The Principle Of Proportionality, Andrew B. Serwin

Andrew B. Serwin

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone - Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 …

Confidentiality: An Expectation In Health Care, Anita L. Allen

All Faculty Scholarship

The practice of confidentiality has continued in an era of increased, voluntary openness about medical information in everyday life. Indeed the number and variety of state and federal laws mandating confidentiality by medical professionals has increased in the last dozen years. Moreover, personal injury suits alleging breach of confidentiality or invasion of privacy, along with suits asserting evidentiary privileges, reflect the reality that expectations of confidentiality of medical records and relationships remain strong.

Random Drug Testing, Henry L. Chambers, Jr.

Law Faculty Publications

Random drug testing coexists uneasily with a general Fourth Amendment right to be free of suspicionless government searches. Typically, a governmental search is accompanied by a warrant supported by individualized suspicion, that is, probable cause. Random drug testing involves a search without any particularized suspicion that the subject of the search has used drugs.

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

The 2007 Analysis Of Information Remaining On Disks Offered For Sale On The Second Hand Market, Andy Jones, Craig Valli, Glenn S. Dardick, Iain Sutherland

Journal of Digital Forensics, Security and Law

All organisations, whether in the public or private sector, increasingly use computers and other devices that contain computer hard disks for the storage and processing of information relating to their business, their employees or their customers. Individual home users also increasingly use computers and other devices containing computer hard disks for the storage and processing of information relating to their private, personal affairs. It continues to be clear that the majority of organisations and individual home users still remain ignorant or misinformed of the volume and type of information that is stored on the hard disks that these devices contain …