Law Commons^™

Social Networking And The Fourth Amendment: Location Tracking On Facebook, Twitter, And Foursquare, Lisa A. Schmidt

Cornell Journal of Law and Public Policy

No abstract provided.

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …

Positive Proposals For Treatment Of Online Intermediaries, Margot Kaminski

American University International Law Review

No abstract provided.

The Devil Comes To Kansas: A Story Of Free Love, Sexual Privacy, And The Law, Charles J. Reid Jr.

Michigan Journal of Gender & Law

On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and …

Sustaining Privacy And Open Justice In The Transition To Online Court Records: A Multidisciplinary Inquiry, Amanda Conley, Anupam Datta

Maryland Law Review

No abstract provided.

Personal Environmental Information: The Promise And Perils Of The Emerging Capacity To Identify Individual Environmental Harms, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article begins from the premise that successful regulation of environmentally significant individual behaviors could achieve meaningful environmental benefits and argues that (1) technology is increasingly making information about individual environmental behaviors and associated harms more accessible; (2) better information about environmentally significant individual behaviors could substantially enhance fledgling efforts to regulate those behaviors; and (3) use of technology-enabled personal environmental information in support of regulation will require the resolution of myriad privacy concerns. The Article seeks to generate and inform a discussion about the appropriate balance between access to personal environmental information and privacy by identifying how regulation can …

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

No Cause Of Action: Video Surveillance In New York City, Olivia J. Greer

Michigan Telecommunications & Technology Law Review

In 2010, New York City Police Commissioner Raymond Kelly announced a new network of video surveillance in the City. The new network would be able to prevent future terrorist attacks by identifying suspicious behavior before catastrophic events could take place. Kelly told reporters, "If we're looking for a person in a red jacket, we can call up all the red jackets filmed in the last 30 days," and "[w]e're beginning to use software that can identify suspicious objects or behaviors." Gothamist later made a witticism of Kelly's statement, remarking, "Note to terrorists: red jackets are not a good look for …

The Latest 4th Amendment Privacy Conundrum: "Stingrays", Max Bulinksi

University of Michigan Journal of Law Reform Caveat

Wired is reporting renewed hubbub regarding statutory and Fourth Amendment protections of individuals’ privacy in the digital age. This time, it comes in the form of federal officers using a fake cellphone tower (called a “stingray”) to locate their suspect, Mr. Rigmaiden, by tracking the location of his cellphone. According to an affidavit submitted to the court, the stingray only captures the equivalent of header information – such as the phone or account number assigned to the aircard as well as dialing, routing and address information involved in the communication.

The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary

Scholarly Articles

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the …

A Risk Not Worth The Reward: The Stored Communications Act And Employers’ Collection Of Employees’ And Job Applicants’ Social Networking Passwords, Nicholas D. Beadle

American University Business Law Review

No abstract provided.

Montgomery County V. Shropshire: Trying To Shoehorn Police Intradepartmental Disciplinary Files Into The Wrong Cabinet, Wayne Heavener

Maryland Law Review

No abstract provided.

Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski

Faculty Publications

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It …

The Need To Prevent Employers From Accessing Private Social Network Profiles, Brett Novick

University of Michigan Journal of Law Reform Caveat

In March 2012, social network privacy became a conversation topic after news reports of the story of Justin Bassett, a job applicant who withdrew his application in the middle of an interview when the interviewer asked him for the username and password of his private Facebook account. Although the issue has received much attention from the public and media, the Department of Justice (DOJ) has stated that it has no interest in prosecuting employers for asking for social networking account information. Fortunately, legislation that would make it illegal for employers to ask for the username and passwords for social networking …

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

Privacy In The Workplace: Are Collective Bargaining Agreements A Place To Start Formulating More Uniform Standards?, Karin Mika

Law Faculty Articles and Essays

This paper discusses ambiguities related to laws in employee privacy and posits that this is problematic for both employers and employees. The article discusses how private employers have almost no restrictions when it comes to employee monitoring, especially when there is an announced (albeit vague) policy. The article then suggests that unions have at least some negotiating power in terms of setting standards for when an employee may be disciplined and thus, labor unions have at least a modicum of power in negotiating clear rules regarding employee monitoring. The paper further suggests that clear policies aren't a bad thing, and …

Surveillance Technology And The Loss Of Something A Lot Like Privacy: An Examination Of The Mosaic Theory And The Limits Of The Fourth Amendment, Courtney E. Walsh

St. Thomas Law Review

No abstract provided.

Executive Trade Secrets, Tom C.W. Lin

UF Law Faculty Publications

The law discriminates among a corporation’s secrets. In the eyes of the law, commercial secrets of corporations are legitimate secrets that deserve legal protection and nondisclosure, but personal secrets of executives are not as deserving of legal protection and nondisclosure. This divergent treatment of secrets has resulted in a legal landscape of perplexing, paradoxical paths for corporations and executives concerning executive disclosures — a precarious landscape that has left corporations and investors dangerously susceptible to revelations of private facts that shock market valuation and institutional stability.

This Article explores this divergent treatment of secrets in the context of public corporations …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney

Articles, Book Chapters, & Popular Press

With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …

Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney

Articles, Book Chapters, & Popular Press

With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …

The Laws Of Image, Samantha Barbas

Journal Articles

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

Journal Articles

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 …

Cybercrime, Ronald C. Griffin

Journal Publications

This essay recounts campaigns against privacy; the fortifications erected against them; and hi-jinx attributable to hackers, crackers, and miscreants under the Fair Credit Reporting Act.

Chain-Link Confidentiality, Woodrow Hartzog

Faculty Scholarship

Disclosing personal information online often feels like losing control over one’s data forever; but this loss is not inevitable. This essay proposes a “chain-link confidentiality” approach to protecting online privacy. One of the most difficult challenges to guarding privacy in the digital age is the protection of information once it is exposed to other people. A chain-link confidentiality regime would contractually link the disclosure of personal information to obligations to protect that information as the information moves downstream. The system would focus on the relationships not only between the discloser of information and the initial recipient, but also between the …

Electronic Privacy And Employee Speech, Pauline Kim

Scholarship@WashULaw

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

Articles

Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

Privacy & The Personal Prospectus: Should We Introduce Privacy Agents Or Regulate Privacy Intermediaries, Scott R. Peppet

Publications

No abstract provided.

Renegotiating The Social Contract, Jennifer S. Hendricks

Publications

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

Big Brother Or Little Brother? Surrendering Seizure Privacy For The Benefits Of Communication Technology, José F. Anderson

All Faculty Scholarship

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave …