Law Commons^™

Undermined Norms: The Corrosive Effect Of Information Processing Technology On Informational Privacy, Richard Warner

Saint Louis University Law Journal

No abstract provided.

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …

Unraveling Privacy: The Personal Prospectus And The Threat Of A Full-Disclosure Future, Scott R. Peppet

Publications

Information technologies are reducing the costs of credible signaling, just as they have reduced the costs of data mining and economic sorting. The burgeoning informational privacy field has ignored this evolution, leaving it unprepared to deal with the consequences of these new signaling mechanisms. In an economy with robust signaling, those with valuable credentials, clean medical records, and impressive credit scores will want to disclose those traits to receive preferential economic treatment. Others may then find that they must also disclose private information to avoid the negative inferences attached to staying silent. This unraveling effect creates new types of privacy …

Website Design As Contract, Woodrow Hartzog

Faculty Scholarship

Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …

Privacy Rights And Public Families, Khiara Bridges

Faculty Scholarship

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Designing Surveillance Law, Patricia L. Bellia

Journal Articles

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 …

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Nothing To Hide: The False Tradeoff Between Privacy And Security (Introduction), Daniel J. Solove

GW Law Faculty Publications & Other Works

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing …

The Pii Problem: Privacy And A New Concept Of Personally Identifiable Information, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information …

Privacy Law Fundamentals, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

"Privacy Law Fundamentals" is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases. Included here for download are The Table of Contents and Chapter 1.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government …

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs & Court Filings

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …

The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Privacy Implications Of Smart Meters, Cheryl Dancey Balough

Chicago-Kent Law Review

Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …

The Deidentification Dilemma: A Legislative And Contractual Proposal, Robert Gellman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Location-Based Services: Time For A Privacy Check-In, Chris Conley, Nicole Ozer, Hari O'Connell, Ellen Ginsburg, Tamar Gubins

Faculty Scholarship

Need to get directions when you are lost? Want to know if your friends are in the neighborhood? Location-based services – applications and websites that provide services based on your current location – can put this information and more in the palm of your hand.

But outdated privacy laws and varying corporate practices could mean that sensitive information about who you are, where you go, what you do, and who you know end up being shared, sold, or turned over to the government.

Can location-based services protect your privacy? Do they? And what can we do to improve the situation? …

Disclosing Stored Communication Data To Fight Crime: The U.S. And Eu Approaches To Balancing Competing Privacy And Security Interests, Elise M. Simbro

Cornell International Law Journal

No abstract provided.

Enforcing Intellectual Property Rights By Diminishing Privacy: How The Anti-Counterfeiting Trade Agreement Jeopardizes The Right To Privacy, Alberto Cerda Silva

Joint PIJIP/TLS Research Paper Series

Enforcing the law in the digital environment is one of the main challenges of the Anti-Counterfeiting Trade Agreement (ACTA). In order to enforce the intellectual property law, unlike previous international agreements on the matter, ACTA attempts to set forth provisions concerned with privacy and personal data. Special provisions refer to law enforcement in the digital environment; ACTA would require the adoption of domestic law to allow identifying supposed infringers and, consequently, the collaboration of the online service providers (OSPs) with rights holders. However, those provisions raise some human rights concerns, particularly as related to the right to privacy of Internet …

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context, Angad Singh

Celebrating WCL Student Authors

“Because the law says we can do it” was the response Officer Griffith offered when asked why officers searched Rodney Gant’s car when he was arrested for driving with a suspended license. Officer Griffith’s honest answer exemplifies the effect of prior Supreme Court decisions on search incident to arrest power in the vehicle context: that a vehicle search incident to arrest is a police entitlement divorced from any rationale whatsoever. Concerns for officer safety and preservation of evidence -- legal justifications that generally permit warrantless searches incident to arrest generally -- had been utterly abandoned by the Court in the …

Are Smartphones Like Footlockers Or Crumped Up Cigarette Packages - Applying The Search Incident To Arrest Doctrine To Smartphones In South Carolina Courts, Justin M. Wolcott

South Carolina Law Review

No abstract provided.

What Is Probable Cause, And Why Should We Care?: The Costs, Benefits, And Meaning Of Individualized Suspicion, Andrew E. Taslitz

Law and Contemporary Problems

Taslitz defines probable cause as having four components: one quantitative, one qualitative, one temporal, and one moral. He focuses on the last of these components. "Individualized suspicion," the US Supreme Court has suggested, is perhaps the most important of the four components of probable cause. That is a position with which he heartily agree. The other three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its vitality.

From Scanning To Sexting: The Scope Of Protection Of Dignity-Based Privacy In Canadian Child Pornography Law, Andrea Slane

Osgoode Hall Law Journal

The Canadian approach to privacy rights in one's body is embedded in the relationship between interests in privacy, bodily integrity, and human dignity. Clarifying these interests is complicated by Canada's middle-ground stance between the European "dignity-based" approach to privacy and the US "liberty-based" orientation. The Canadian approach is closer to the European model when intrusions upon the body are conceived as wholly or mostly non-consensual (e.g., strip searches, voyeurism, and most child pornography). However, once consent plays a potentially determinative rote, the US liberty-based approach gains ground. This reluctance to fully align dignity with privacy results in confusion about the …

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Scholarly Works

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

The (Mis)Categorization Of Sex In Anglo-American Cases Of Transsexual Marriage, John Parsi

Michigan Law Review

The United States' promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst. This Note details the legal progression from non-recognition to recognition of post-operative transsexuals' acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …