Law Commons^™

Profiling With Apologies, Sherry F. Colb

Sherry Colb

No abstract provided.

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Sherry Colb

No abstract provided.

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Sherry Colb

No abstract provided.

Domestic Violence And The Politics Of Privacy, By Kristin A. Kelly [Book Review], Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

Privacy, Copyright, And Letters, Jeffrey Harrison

Jeffrey L Harrison

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

Danaya C. Wright

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Adam Thierer

This paper highlights some of the opportunities presented by the rise of the so-called “Internet of Things” and wearable technology in particular, and encourages policymakers to allow these technologies to develop in a relatively unabated fashion. As with other new and highly disruptive digital technologies, however, the Internet of Things and wearable tech will challenge existing social, economic, and legal norms. In particular, these technologies raise a variety of privacy and safety concerns. Other technical barriers exist that could hold back IoT and wearable tech — including disputes over technical standards, system interoperability, and access to adequate spectrum to facilitate …

Comment On Home Mortgage Disclosure Act Proposed Rulemaking, David J. Reiss

David J Reiss

The Consumer Financial Protection Bureau's Home Mortgage Disclosure Act proposed rulemaking (proposed Aug. 29, 2014) is a reasonable one. It increases the amount of information that is to be collected about important consumer products, such as reverse mortgages. It also increases the amount of important information it collects about all mortgages. At the same time, it releases lenders from having to determine borrowers’ intentions about how they will use their loan proceeds, something that can be hard to do and to document well. Finally, while the proposed rule raises some privacy concerns, the CFPB can address them.

Csi Las Vegas: Privacy, Policing, And Profiteering In Casino Structured Intelligence, Jessica D. Gabel

Jessica Gabel Cino

This Article argues that the intricate, vast amounts of consumer information compiled through casino structured intelligence require greater protection and oversight in the contexts of both bankruptcy and law enforcement. Section II examines the various types of casino technology and information gathering that casinos perform. Section III considers the available protections of private information in terms of security breaches, law enforcement sharing, and sales in the context of a bankruptcy. Section IV discusses additional safeguards and ethical concerns that should be considered as casinos continue to increase their data mining efforts. Finally, Section V concludes that, minimally, consumers are entitled …

Self-Defense Against Robots, A. Michael Froomkin, Zak Colangelo

A. Michael Froomkin

This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy. May a landowner legally shoot down a trespassing drone? May she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place …

Riley V. California: What It Means For Metadata, Border Searches, And The Future Of Privacy, Adam Lamparello

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …

Prenatal Caretaking: Limits Of State Intervention With And Without Roe, Sharon E. Rush

Sharon E. Rush

With or without Roe, difficult questions regarding the state's role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman's pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman's right of privacy outside of abortion have not been answered by the Supreme Court.

Do Androids Dream Of Electric Free Speech? Visions Of The Future Of Copyright, Privacy And The First Amendment In Science Fiction, Daxton R. Stewart

Daxton "Chip" Stewart

Science fiction authors have long projected the future of technology, including communication devices and the way in which future societies may use them. In this essay, these visions of future technology, and their implications on the future of media law and policy, are explored in three areas in particular – copyright, privacy, and the First Amendment. Themes examined include moving toward massively open copyright systems, problems of perpetual surveillance by the state, addressing rights of obscurity in public places threatened by wearable and implantable computing devices, and considering free speech rights of autonomous machines created by humans. In conclusion, the …

Privacy In Public: “Google Glass” And “Creepshots”, Subhajit Basu

Subhajit Basu

This article looks at two interrelated issues that we will be confronting since the invention of “Google Glass”. First, the development of a particular technology that is inevitable and sometimes autonomous and, second, potential victims of that innovation. I argue that the expansion of a technology like “Google Glass”, in particular the use of this technology for taking “creepshots”, blurs the line between what is considered public and private. “Creepshots” are covertly taken sexually indicative photographs, mostly of women, which are posted online without consent. In fact, it is the lack of consent that is the crucial component for a …

Cloud Computing E Protezione Dei Dati Nel Web 3.0 (Cloud Computing And Data Protection In The Web 3.0), Guido Noto La Diega

Guido Noto La Diega

‘Cloud computing’ in simplified terms can be understood as the storing, processing and use of data on remotely located computers accessed over the internet. This means that users can command almost unlimited computing power on demand, that they do not have to make major capital investments to fulfil their needs and that they can get to their data from anywhere with an internet connection (COM(2012) 529 final, unleashing the potential of cloud computing in Europe). The essay focuses on the problems of privacy and data security in european law and italian law from the perspective of cloud computing. Italian Abstract: …

To Read Or Not To Read: Privacy Within Social Networks, The Entitlement Of Employees To A Virtual “Private Zone” And The Balloon Theory, Shlomit Yanisky-Ravid

Shlomit Yanisky-Ravid Professor of Law

Social networking has increasingly become the most common venue of self-expression in the digital era. Although social networks started as a social vehicle, they have recently become a major source for employers to track personal data ("screening") of applicants, employees or former employees.

This article addresses the questions of whether this casual business routine harms employees' rights to privacy with regard to data users post in social networks, what the drawbacks of this routine may be, and why and how privacy rights should be protected to secure private zones within the virtual sphere. The article suggests that a privacy right …

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

A. Michael Froomkin

US law has remarkably little to say about mass surveillance in public, a failure which has allowed the surveillance to grow at an alarming rate – a rate that is only set to increase. This article proposes ‘Privacy Impact Notices’ (PINs) — modeled on Environmental Impact Statements — as an initial solution to this problem. Data collection in public (and in the home via public spaces) resembles an externality imposed on the person whose privacy is reduced involuntarily; it can also be seen as a market failure caused by an information asymmetry. Current doctrinal legal tools available to respond to …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, Steven M. Bellovin, Renée M. Hutchins, Tony Jebara, Sebastian Zimmeck

Renée M. Hutchins

Since 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable xpectations of privacy.[1] An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court has considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” has stepped …

Big Data's Other Privacy Problem, James Grimmelmann

James Grimmelmann

Big Data has not one privacy problem, but two. We are accustomed to talking about surveillance of data subjects. But Big Data also enables disconcertingly close surveillance of its users. The questions we ask of Big Data can be intensely revealing, but, paradoxically, protecting subjects' privacy can require spying on users. Big Data is an ideology of technology, used to justify the centralization of information and power in data barons, pushing both subjects and users into a kind of feudal subordination. This short and polemical essay uses the Bloomberg Terminal scandal as a window to illuminate Big Data's other privacy …

Abidor V. Napolitano: Suspicionless Cell Phone And Laptop Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles Maclean

Adam Lamparello

The article explores the December 31, 2013 Abidor decision where the federal district court upheld the ongoing application of the border search exception as applied to deep, forensic searches of laptops and other digital devices. That exception allows suspicionless searches of any persons, effects, and “closed containers” crossing a border into the United States, and laptops and external hard drives are generally considered “closed containers” under the border search exception. We argue that the border search exception, grounded as it is in pre-digital age fact patterns, should no longer serve as precedent for border searches of the immense memories of …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

Katz On A Hot Tin Roof: The Reasonable Expectation Of Privacy Is Rudderless In The Digital Age Unless Congress Continually Resets The Privacy Bar, Charles E. Maclean

Charles E. MacLean

The Katz reasonable expectation of privacy doctrine has lasting relevance in the digital age, but that relevance must be carefully and clearly guided in great detail by Congressional and state legislative enactments continually resetting the privacy bar as technology advances. In that way, the Katz “reasonableness” requirements are actually set by the legislative branch, thereby precluding courts from applying inapposite analogies to phone booths, cigarette packs, and business records. Once legislation provides the new contours of digital privacy, those legislative contours become the new “reasonable.”

This article calls upon Congress, and to a lesser extent, state legislatures, to control that …

The Unc Law Library's Redaction Of Its Digitized Collection Of North Carolina Supreme Court Briefs: A Case Study, Nicole Downing

AALL/LexisNexis Call for Papers

This study evaluates the digital redaction process as undertaken by the University of North Carolina Kathrine R. Everett Law Library as part of digitizing their collection of North Carolina Supreme Court briefs. New privacy concerns are raised by digitizing court documents and making them available online. Libraries have an interest in digitizing their print collections of court documents for public access on the Internet, but have received no clear guidance on how to proceed in the face of legal concerns. The purpose of this research is to inform libraries of the legal, ethical, and practical situation surrounding redaction of digitized …

The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.

Albert E Poirier Jr.

The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.

Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald

Susan Freiwald

Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance …

Grounding Drones: Big Brother’S Tool Box Needs Regulation Not Elimination, Melanie M. Reid

Melanie M. Reid

One of the most significant contemporary issues in privacy law relates to law enforcement’s new domestic surveillance tool: unmanned aerial vehicles, also known as, drones. Law enforcement’s use of aerial surveillance as an investigatory tool is currently under attack. In the past, if law enforcement chose to follow a suspect throughout the day, either on the ground or in the air, they need not worry about seeking a warrant or determining whether probable cause or reasonable suspicion exists to justify their surveillance. Aerial surveillance of criminal suspects has been considered outside the protections of Fourth Amendment law. In the 1980’s, …

No Surfing Allowed: A Review And Analysis Of Legislation Prohibiting Employers From Demanding Access To Employees’ And Job Applicants’ Social Media Accounts, Robert Sprague

Robert Sprague

This article examines recent state legislation prohibiting employers from requesting username and password information from employees and job applicants in order to access restricted portions of those employees’ and job applicants’ personal social media accounts. This article raises the issue of whether this legislation is even needed, from both practical and legal perspectives, focusing on: (a) how prevalent the practice is of requesting employees’ and job applicants’ social media access information; (b) whether alternative laws already exist which prohibit employers from requesting employees’ and job applicants’ social media access information; and (c) whether any benefits can be derived from this …