Law Commons^™

Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas

Faculty Scholarship

The new privacy regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) become effective April 14, 2003. This article outlines the implications of the new policy for practicing physicians. The regulations will affect virtually every physician, because they apply to any health care provider who conducts any business electronically, including billing. The regulations require health care providers to provide patients with a privacy notice that informs them who will have access to their records without their explicit consent and about patients' rights to inspect and amend their own records.

The Impact Of Opt-In Privacy Rules On Retail Credit Markets: A Case Study Of Mbna, Fred H. Cate, Michael Staten

Articles by Maurer Faculty

U.S. privacy laws are increasingly moving from a presumption that consumers must object to ("opt out" of) uses of personal data they wish to prohibit to a requirement that they must explicitly consent ("opt in") to uses they wish to permit. Despite the growing reliance on opt-in rules, there has been little empirical research on their costs. This Article examines the impact of opt-in on MBNA Corporation, a diversified, multinational financial institution. The authors demonstrate that opt-in would raise account acquisition costs and lower profits, reduce the supply of credit and raise credit card prices, generate more offers to uninterested …

New Surveillance, The , Sonia K. Katyal

Faculty Scholarship

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities …

States And Internet Enforcement, Joel R. Reidenberg

Faculty Scholarship

This essay addresses the enforcement of decisions through internet instruments. The starting point is a brief justification of internet enforcement as the obligation of democratic states. Next, the essay argues that the movement to re-engineer the internet infrastructure by public and private actions also facilitates state enforcement of legal and policy decisions. The essay maintains that states will increasingly try to use network intermediaries such as payment systems and Internet Service Providers as enforcement instruments. Finally, and most importantly, the essay focuses on ways that states may harness the power of technological instruments such as worms, filters and packet interceptors …

The Battle Of The Music Industry: The Distribution Of Audio And Video Works Via The Internet, Music And More, David Balaban

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

4th Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 4th Annual Computer & Technology Law Institute held by UK/CLE in November 2002.

Education Law, D. Patrick Lacy Jr., Kathleen S. Mehfoud

University of Richmond Law Review

No abstract provided.

Constitutional Issues In Information Privacy, Fred H. Cate, Robert Litan

Michigan Telecommunications & Technology Law Review

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. Recent efforts to identify and apprehend terrorists and to protect against future attacks threaten to weaken constitutional protections against government intrusions into personal privacy. However, these …

The Fourth Amendment In The Hallway: Do Tenants Have A Constitutionally Protected Privacy Interest In The Locked Common Areas Of Their Apartment Buildings?, Sean M. Lewis

Michigan Law Review

One afternoon, a police officer spots a man driving a Cadillac through a run·down neighborhood. His interest piqued, the officer decides to follow the vehicle. The Cadillac soon comes to rest in front of an apartment building, and the driver, Jimmy Barrios-Moriera, removes a shopping bag from the trunk and enters the building. The moment Barrios-Moriera disappears within the doorway, the officer sprints after him because he knows that the door to the apartment building will automatically lock when it closes. He manages to catch the door just in time and rushes in. Barrios-Moriera is already halfway up a flight …

The Patriot Act’S Impact On The Government’S Ability To Conduct Electronic Surveillance Of Ongoing Domestic Communications, Nathan C. Henderson

Duke Law Journal

No abstract provided.

An Equality Paradign For Preventing Genetic Discrimination, Anita Silvers, Michael A. Stein

Vanderbilt Law Review

On June 26, 2000, scientists announced at a White House news conference that they had completed mapping the human genome sequence, the human race's genetic blueprint. This pronouncement generated tremendous and well-deserved excitement. Genomics, the study and application of genetic information, promises to be an unparalleled tool for improving public health. Genetic testing can identify asymptomatic individuals who are at risk of becoming ill themselves or bestowing illness on their children. As a result, individuals who test positive can take prophylactic measures to slow or stop disease and can also reduce the births of progeny at high risk of compromised …

Sneak And Peak Search Warrants, Donald E. Wilkes Jr.

Popular Media

In his recent article "Taking Liberty with Freedom," author Richard P. Moore reminds us that the USA Patriot Act, signed by President Bush last Oct. 26 in the wake of the Sept. 11 terrorist attacks, "gives the government the kind of sweeping powers of arrest, detention, surveillance, investigation, deportation, and search and seizure that ... assault ... our most basic freedoms."

I want to examine here a single section of the USA Patriot Act--section 213, definitely one of the most sinister provisions of this monstrous statute.

Privacy And The Post-September 11 Immigration Detainees: The Wrong Way To A Right (And Other Wrongs), Sadiq Reza

Faculty Scholarship

In forthcoming work, I argue that this common-law privacy right should indeed attach to individuals arrested for or suspected of crime.9 I also argue that support for the right exists in a variety of judicial, statutory, and other sources, and that legislation to formally protect the right is warranted and constitutional. The reasoning is simple: being publicly named in connection with criminal allegations is stigmatizing, and the resultant personal harm-social, professional, emotional, other-lasts, and is difficult to justify when it is visited upon someone who is acquitted of the charges or against whom the charges are dismissed. Equally troubling is …

Computer Searches And Seizures: Some Unresolved Issues, Susan W. Brenner, Barbara A. Frederiksen

Michigan Telecommunications & Technology Law Review

The goal of this article is to illustrate the issues that arise in the context of computer search and seizures by examining several areas in which the application of Fourth Amendment concepts to computer searches and/or seizures can be problematic. In order to illustrate this point, the article will build on a hypothetical. The hypothetical situation assumes law enforcement officers have lawfully obtained a warrant to search for and seize evidence concerning the commission of one or more crimes. It will also be assumed that computer technology played some role in the commission of these crimes, so computer equipment and …

Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking The Identity Of Anonymous Employee Internet Posters, Margo E. K. Reder, Christine Neylon O'Brien

Michigan Telecommunications & Technology Law Review

Communications systems are now wide open and fully accessible, with no limits in range, scope or geography. Targeted audiences are accessible with pinpoint accuracy. Messages reach millions of readers with one click. There is a chat room for everyone. Most importantly, there is no limit on content. Therefore, employees can register their dissatisfaction by posting a message in a chat room. Moreover, the identity of the posting employee is not easily discoverable due to anonymous and pseudonymous communications capabilities. The nature of these online messages is qualitatively different from real-world communications. By way of example, newspapers have a responsibility regarding …

Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr

Michigan Telecommunications & Technology Law Review

"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments …

Carnivore, The Fbi’S E-Mail Surveillance System: Devouring Criminals, Not Privacy, Griffin S. Dunham

Federal Communications Law Journal

On July 11, 2000, the FBI intorduced Carnivore, an Internet monitoring system. It was designed, and is used exclusively, to carry out court-ordered surveillance of electronic communications. It is a tangible, portable device, tantamount to a phone tap, that allows the FBI to intercept and collect criminal suspects' e-mail without their knowledge or consent. This Note addresses competing and parallel interests between the government and society to determine the legitimacy and necessity of Carnivore. The purpose of this Note is twofold: first, to demonstrate the need for Carnivore to enable law enforcement to keep up with criminals who utilize cyberspace …

Rights In Conflict: The First Amendment’S Third Century, Robert M. O'Neil

Law and Contemporary Problems

O'Neil has witnesses the resolution, or at least the clarification, of many free speech and press issues. There are, however, persistent issues that deserve particularly close scrutiny. Three such issues are tensions between free expression and privacy, civility, and equality.

The Fourth Amendment In The Twenty-First Century: Technology, Privacy, And Human Emotions, Andrew E. Taslitz

Law and Contemporary Problems

Police and local political officials in Tampa FL argued that the FaceIt system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, some staging protests against the FaceIt system. Privacy objects seem to be far more widely shared than this small protest might suggest.

Indecent Exposures In An Electronic Regime, Natalie L. Regoli

Federal Communications Law Journal

As the topic of data privacy is vast and the subject of much scrutiny, this Comment focuses narrowly on commercial cyber-activities relating to the nonconsensual Internet acquisition of personally identifiable user data. Beginning with a brief examination of the technology that has exacerbated privacy law's inadequacies, it briefly discusses failed attempts to safeguard privacy rights through the market and federal agency management. It then addresses current U.S. privacy legislation and the 1995 European Privacy Directive. Finally, this Comment proposes the creation of a new legislative system to effectively combat the surreptitious collection, storage, use, and sale of personal data.

We Can Do This The Easy Way Or The Hard Way: The Use Of Deceit To Induce Consent Searches, Rebecca Strauss

Michigan Law Review

In October of 1995, Aaron Salvo was studying and living at Ashland College. College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo's dorm room. Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo …

Securing Our Infrastructure: Private/Public Information Sharing, Rena I. Steinzor

Congressional Testimony

No abstract provided.

A Safety Net In The E-Marketplace: The Safe Harbor Principles Offer Comprehensive Privacy Protection Without Stopping Data Flow, William J. Kambas

ILSA Journal of International & Comparative Law

In May of 2000, the FTC, under Chairman Robert Pitofsky, concluded that industry self-regulation was not effective in protecting consumer privacy and in a report to Congress the FTC expressed the view "that legislation [was] necessary to ensure further implementation of consumer data protection devices."

An Overview Of Canadian Privacy Law For Pharmaceutical And Device Manufacturers Operating In Canada, Erika Lietzan, John K. Fuson

Faculty Publications

On April 13, 2000, the Canadian Parliament enacted by Royal Assent the Personal Information Protection and Electronic Documents Act (PIPEDA). The Act requires private organizations to comply with a code of “fair information practice,” which mandates individual consent for the collection, use, and disclosure of personal information. PIPEDA complements the Federal Privacy Act, which places similar obligations on government institutions. On January 1, 2002, the Act began to apply to personal information (including personal health information) collected, used, or disclosed by a federal work, undertaking, or business, and personal information (including personal health information) disclosed by any organization for consideration …

The Push To Private Religious Expression: Are We Missing Something?, Kathleen A. Brady

Fordham Law Review

No abstract provided.

Privacy And Personal Data Protection In The Information Age: A Comparative Evaluation, Emeka B. Obasi

LLM Theses and Essays

The United States and European economies are both information economies, however, they have different approaches in protecting personal information. This study examines in as much detail as possible, the relevant privacy laws in the two economic regions. The Europeans have a comprehensive legislation regulating personal information that vests considerable control on the data subject. Europeans characterize personal data as a fundamental human right. Americans, on the other hand, protect personal information by legislating for specific industries as the need arises and do not recognize privacy of personal information as a fundamental right. This study concludes the European approach is preferable, …

Human Identification Theory And The Identity Theft Problem, Lynn M. Lopucki

UF Law Faculty Publications

This paper builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with the characteristics of a person observed in a second observation to determine whether they are the same person. From the theory it follows that a characteristic used for identification in the credit reporting system, such as social security number, mother's maiden name and date …

Stop The Presses! First Amendment Limitations Of Professional Athletes' Publicity Rights , Erika T. Olander

Marquette Sports Law Review

No abstract provided.

Conceptualizing Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this Article, Professor Solove develops a new approach for conceptualizing privacy. He begins by examining the existing discourse about conceptualizing privacy, exploring the conceptions of a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. Solove contends that the theories are too narrow or too broad. With a few exceptions, the discourse seeks to conceptualize privacy by isolating one or more common essential or core characteristics of privacy. Expounding upon Ludwig Wittgenstein's notion of family resemblance, Solove contends that privacy is better understood as drawing from a common pool of similar characteristics. Rather than search for an overarching …

Accounting For The Slow Growth Of American Privacy Law, Rodney A. Smolla

Law Faculty Publications

American privacy law is surprisingly weak. If privacy law were a stock, its performance over the last century would not be deemed impressive.  It has been a consistently poor achiever, barely keeping up with inflation. I speak here of privacy law in the tort sense, and the four torts that are classically understood to comprise invasion of privacy: 1) false light; 2) publication of private facts; 3) intrusion; and 4) appropriation. Of these four torts, only appropriation (or "the right of publicity") has been a ripping success for plaintiffs, a genuine high-return stock, and a species of intellectual property, even …