Law Commons^™

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Internet-of-Things (IoT) devices are ubiquitous, but little attention has been paid to how they may incorporate dark patterns despite consumer protections and privacy concerns arising from their unique access to intimate spaces and always-on capabilities. This paper conducts a systematic investigation of dark patterns in 57 popular, diverse smart home devices. We update manual interaction and annotation methods for the IoT context, then analyze dark pattern frequency across device types, manufacturers, and interaction modalities. We find that dark patterns are pervasive in IoT experiences, but manifest in diverse ways across device traits. Speakers, doorbells, and camera devices contain the most …

Pandemics And The Protection Of Privacy And Personal Information: Issues Concerning The Restriction On The Right To Privacy In Emergencies, Fumio Shimpo

Japanese Society and Culture

This article focuses on issues which need to be considered in aiming to ensure both the effectiveness of infectious disease control measures and the protection of the right to privacy from the following perspectives.

(1) Issues regarding the restriction of the right to privacy in emergency situations, including (i) the types of measures taken in emergency situations and issues with respect to the restriction of the right to privacy in emergency situations, (ii) the normalisation, constancy and fixation of exceptional measures in emergency situations, (iii) dual-use and use for purposes different from those originally intended, (iv) acquisition of secondary information …

The First Amendment And The Second Sex, Cristina Carmody Tilley

Faculty Publications

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing …

Standing Up To Hackers: Article Iii Standing For Victims Of Data Breaches, Kendall Coffey

University of Miami Law Review

Despite the increasing amount of data breaches, there is no liability for parties who do not adequately protect victim’s information. In federal court, plaintiffs must show that their injury was concrete, particularized, and imminent. But, when plaintiffs’ information has been stolen, but not yet criminally used, they may be unable to establish a right to relief. Victims face challenges when seeking damage for this future harm, because despite their destroyed privacy, they may not have evidence of a perpetrator’s actual misuse of purloined data. This Article analyzes multiple court decisions, generally in the setting of class-actions, and discusses outcomes of …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

Utah Law Review

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

How Much Is Your Data Worth? Ccpa's Data Valuation Requirement Explored, Jeewon Kim Serrato

San Diego Law Review

On January 28, 2022, the Office of the Attorney General of the State of California (OAG or the California Attorney General) put businesses operating loyalty programs on notice for violations of the California Privacy Protection Act (CCPA). Immediately following this press release, the California Attorney General sent a number of Notice of Violation letters to businesses, which alleged that if a business is offering “discounts, free items, or other rewards, in exchange for personal information[, it] must provide consumers with a notice of financial incentive.” These letters were sent to “major corporations in the retail, home improvement, travel, and food …

“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates

Arkansas Law Review

State v. Bates poses interesting First Amendment questions that go far beyond the case itself, such as whether communications to and from smart speakers are protected under the First Amendment and, if so, whether the government must therefore meet a heightened standard before obtaining information from these devices. But currently, there are no definite answers. Thus, this analysis will attempt to answer these questions as well as offer general guidance for the future of First and Fourth Amendment law in the age of ever-changing technological advancements and never-ending criminal accusations.

Perlindungan Atas Privasi Konsumen Dalam Layanan Reservasi Tiket Online Dari Pt. Kereta Api Indonesia, Aprilia Susanti

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The significant increase in online activities cannot be separated from the many active internet users who use mobile internet connections to carry out their daily activities, one of which is for the convenience of making ticket reservations at PT. Indonesian Railways (KAI). The purpose of this research is to find out the study of the business law of protecting consumer privacy in the online ticketing service of PT. KAI. Data collection was carried out by means of a literature study of the relationship between laws and regulations in consumer protection and the position of PT. KAI as business actors and …

Black Lives Monitored, Chaz Arnett

Faculty Scholarship

The police killing of George Floyd added fuel to the simmering flames of racial injustice in America following a string of similarly violent executions during a global pandemic that disproportionately ravaged the health and economic security of Black families and communities. The confluence of these painful realities exposed deep vulnerabilities and renewed a reckoning with the long unfulfilled promise of racial equality, inspiring large-scale protests around the country and across the globe. As with prior movements for racial justice, from slavery abolition to the civil rights movement’s demand to end Jim Crow, protests have been met with extreme force, either …

Addressing Personal Data Collection As Unfair Methods Of Competition, Maurice E. Stucke

Scholarly Works

Enforcers, policymakers, scholars, and the public are concerned about Google, Apple, Facebook, Amazon, and recently Microsoft and their influence. That influence comes in part from personal data. These companies are “data-opolies,” in that they are powerful firms that control our data. The data comes from their vital ecosystems of interlocking online platforms and services, which attract users; sellers; advertisers; website publishers; and software, app, and accessory developers.

The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Cutting across political lines, many Americans think Big Tech’s economic power is a …

Hipaa V. Dobbs, Wendy A. Bach, Nicolas Terry

Scholarly Works

A few days after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, the Biden administration issued guidance seeking to reassure doctors and patients that the federal HIPAA Privacy Rule would allow women to feel confident that they could still seek reproductive healthcare without worrying that the information in their medical records would end up in the hands of police. As scholars focused respectively on the criminalization of poverty and reproductive conduct (Wendy Bach) and health policy and privacy (Nicolas Terry), we were less than reassured. We write this essay to emphasize how, rather than revealing the strength of …

Private Ownership Of Public Facts: Docudramas, Deals, And Life Story Rights, Dave Fagundes, Jorge L. Contreras

Utah Law Faculty Scholarship

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from …

Children's Digital Privacy And The Case Against Parental Consent, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

Children’s engagement with the internet has exploded. From education to social media, companies have offered products and services that --far from being mere distractions for children -- have increasingly become necessities. This necessity is most keenly felt in the EdTech world. As companies rely on the verifiable parental consent required by the Children’s Online Privacy Protection Act (“COPPA”) to collect and use minors’ data, reviewing boilerplate waivers of liability and consent forms for children’s online activities have thus become part of parenting. This article argues that under the common law tradition of protecting the best interest of the child, when …

Influencing “Kidfluencing”: Protecting Children By Limiting The Right To Profit From “Sharenting”, Charlotte Yates

Vanderbilt Journal of Entertainment & Technology Law

Statistics on children’s digital presences are staggering, with an overwhelming majority of children having unique digital identities by age two. The phenomenon of “sharenting” (parents sharing content of their children on social media) can start as early as a sonogram photo or a birth video and evolve into parent-run Instagram and TikTok accounts soon after. Content is often intimate, sometimes embarrassing, and frequently shared without children’s consent. Sharenting poses a myriad of risks to children including identity theft, digital kidnapping, exposure to child predators, emotional trauma, and social isolation. In the face of such significant risks to children’s well-being, one …

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.

The Need For An Australian Regulatory Code For The Use Of Artificial Intelligence (Ai) In Military Application, Sascha-Dominik Dov Bachmann, Richard V. Grant

American University National Security Law Brief

Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of …

Stars, Stripes, And Surveillance: The United States' Failure To Regulate Data Privacy, Sam Begland

American University Law Review

In the wake of the United States Supreme Court’s devastating decision to strip Americans of their constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, data privacy is more salient than ever. Without adequate data regulations, state governments and anti-abortion activists alike can harass and prosecute pregnant people attempting to exercise their bodily autonomy. This comment argues that the United States has violated its obligations under the International Covenant on Civil and Political Rights (ICCPR) Article 17 by failing to protect against interference with the use and collection of reproductive health data. Further, this comment analyzes interpretations of …

Privacy In Modern American Law And Society, Joanna L. Grossman, Lawrence M. Friedman

Faculty Journal Articles and Book Chapters

No abstract provided.

Hanging In The Balance: An Assessment Of European Versus American Data Privacy Laws And Threats To U.S. National Security, Dara Paleski

American University National Security Law Brief

Social media has quickly become an integral part of modern-day life, keeping the world connected to friends, family and current events. Social media, and the data collected from it, also play a crucial role in intelligence gathering and the safeguarding of national security. It is estimated that about 80-95% of information that is collected for intelligence missions is found freely throughout the internet or other publicly available sources. This type of information has been dubbed SOCMINT (Social Media Intelligence) and it has become a crucial tool within the intelligence community. After the Edward Snowden leaks in 2013 revealed a global …

Confidentiality Over Privacy, Stacey A. Tovino

Faculty Articles

No abstract provided.

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.

One Size Does Not Fit All: How The California Privacy Rights Act Will Not Improve Employee Data Collection And Privacy Rights, Kayla N. Bushey

Catholic University Journal of Law and Technology

No abstract provided.

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster

UF Law Faculty Publications

Investigative reporters and the #MeToo movement exposed the widespread use of nondisclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …

Privacy Implications Of Central Bank Digital Currencies, Jiaying Jiang

UF Law Faculty Publications

One hundred thirty-one countries, representing over 98 percent of the global gross domestic product (GDP), are currently exploring central bank digital currencies (CBDCs), a new form of digital money that is different from privately issued cryptocurrencies and stablecoins. As central banks worldwide grapple with CBDC design options, privacy has become a critical feature and concern. Many central banks, government agencies, nongovernmental organizations (NGOs), think tanks, and even the general public have underscored the importance of privacy in CBDC systems. Moreover, a diverse group of economists, computer scientists, engineers, and legal scholars have embarked on crafting privacy-preserving CBDC designs.

But two …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

SMU Law Review

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …

Criminal Procedure—"I Smell Marijuana”—Why Arkansas’S Categorical Authorization For A Warrantless Automobile Search Is Entirely Unreasonable, W. Jennings Stanley

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Procedure—Resolving The Circuit Split Regarding The Expectation Of Privacy In Mail Addressed With An Alias, Rachel Key

University of Arkansas at Little Rock Law Review

No abstract provided.