Law Commons^™

Balancing The Scales: Reinstating Home Privacy Without Violence In Indiana, Tyler Anderson

Indiana Law Journal

No abstract provided.

"Pets Must Be On A Leash": How U.S. Law (And Industry Practice) Often Undermines And Even Forbids Valuable Privacy Enhancing Technology, A. Michael Froomkin

Articles

No abstract provided.

Social Media In The Sunshine: Discovery And Ethics Of Social Media - Florida's Right To Privacy Should Change The Analysis, Spencer Kuvin, Chelsea Silvia

St. Thomas Law Review

The question is whether the liberal discovery rules have gone too far and where the line should be drawn in Florida to protect the privacy interests of individuals from being implicated by overly permissive rules of discovery. Current case law on this issue is informative, but demonstrates that courts need direction on how to decide these complex issues in a uniform manner. The courts that have rendered decisions regarding discovery of social networking sites ("SNS") have made attempts to balance individual privacy interests in the information contained on the SNS with the broad rules of discovery. Focusing on Florida law, …

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

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 …

Defining Privacy And Utility In Data Sets, Felix T. Wu

University of Colorado Law Review

Is it possible to release useful data while preserving the privacy of the individuals whose information is in the database? This question has been the subject of considerable controversy, particularly in the wake of well-publicized instances in which researchers showed how to re-identify individuals in supposedly anonymous data. Some have argued that privacy and utility are fundamentally incompatible, while others have suggested that simple steps can be taken to achieve both simultaneously. Both sides have looked to the computer science literature for support. What the existing debate has overlooked, however, is that the relationship between privacy and utility depends crucially …

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Journal Articles

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In "Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment" Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

Taxing Privacy, Hayes R. Holderness

Law Faculty Publications

In the United States, many low-income citizens are being held to a harsher standard than wealthier citizens — these low-income citizens are being asked to relinquish their privacy in order to obtain the public assistance they need, whereas wealthier individuals are not subjected to similar levels of public scrutiny for government benefits that they claim. Giving up privacy can have devastating effects on individuals’ lives — they may suffer various dignitary harms, may experience repressed abilities to express themselves, and may even be coerced into important life decisions by the government. This situation presents a unique problem to the neediest …

Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark

Journal of Law and Health

In New York suppression of evidence is only appropriate where constitutional, statutory, or decisional authority mandates it, even if obtained by unethical or unlawful means. The courts have been split on how to apply this standard to evidence obtained in violation of HIPAA. In the case In re Miguel M., the New York Court of Appeals addressed this question for the first time, finding that such evidence should be suppressed. Because it is the first authoritative case in New York addressing the evidentiary impact of a HIPAA violation, it is tempting to read Miguel M. as creating a new evidentiary …

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Faculty Articles

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

Big Data In Small Hands, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

"Big data" can be defined as a problem-solving philosophy that leverages massive data-sets and algorithmic analysis to extract "hidden information and surprising correlations." Not only does big data pose a threat to traditional notions of privacy, but it also compromises socially shared information. This point remains under appreciated because our so-called public disclosures are not nearly as public as courts and policymakers have argued — at least, not yet. That is subject to change once big data becomes user friendly.

Most social disclosures and details of our everyday lives are meant to be known only to a select group of …

Leap-Ahead Privacy As A Government Responsibility In The Digital Age, David G. Delaney, Ivan K. Fong

Articles by Maurer Faculty

No abstract provided.

The Surveillance Society And The Third-Party Privacy Problem, Shaun B. Spencer

South Carolina Law Review

No abstract provided.

From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Maryland Law Review

No abstract provided.

Keep Your Update To Yourself, Neil M. Richards

Scholarship@WashULaw

An essay from Wired Magazine (UK)'s special edition, The Wired World in 2013. The essay makes the argument that frictionless sharing of reading habits should decline in 2013.

The Dangers Of Surveillance, Neil M. Richards

Scholarship@WashULaw

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have …

Three Paradoxes Of Big Data, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decision making can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has …

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

Publications

The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

Privacy-Invading Technologies And Recommendations For Designing A Better Future For Privacy Rights, Alexandra Rengel

Intercultural Human Rights Law Review

The concept of privacy has been discussed for centuries by philosophers, anthropologists, sociologists, and legal scholars. The importance that individuals place on privacy is beyond question and transcends geographical, cultural and racial boundaries. Individuals' need for secrecy and private space is so fundamental to forging relationships with others, and to preserving our sense of self, that a society with a complete lack of individual privacy would be unimaginable. A right to privacy protects individuals from having the contents of certain private information made public and regulates the means and manner by which that information is obtained. However, new technologies often …

Leap-Ahead Privacy As A Government Responsibility In The Digital Age, Ivan K. Fong, David G. Delaney

American University Law Review

No abstract provided.

Regulating Information Security In The Government Contracting Industry: Will The Rising Tide Lift All The Boats, Keir X. Bancroft

American University Law Review

No abstract provided.

Identity Crisis: Seeking A Unified Approach To Plaintiff Standing For Data Security Breaches Of Sensitive Personal Information, Miles L. Galbraith

American University Law Review

No abstract provided.

Reining In The Rogue Employee: The Fourth Circuit Limits Employee Liability Under The Cfaa, Danielle E. Sunberg

American University Law Review

No abstract provided.

Hacker's Delight: Law Firm Risk And Liability In The Cyber Age, Michael Mcnerney, Emilian Papadopoulos

American University Law Review

No abstract provided.

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Hipaa Turns 10: Analyzing The Past, Present, And Future Impact, Daniel J. Solove

GW Law Faculty Publications & Other Works

This essay, written in a journalistic style, examines HIPAA over the past decade. The essay discusses the creation of HIPAA, the evolution of HHS enforcement, the impact of the HITECH Act, and the overall influence and effect of HIPAA on healthcare providers and organizations using medical data. Professor Solove combines analysis with interviews of key regulators and practitioners.

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …