Law Commons^™

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

Closing The Data Gap: Protecting Biometric Information Under The Biometric Information Privacy Act And The California Consumer Protection Act, Eva-Maria Ghelardi

St. John's Law Review

(Excerpt)

Between May and June of 2014, Stacy Rosenbach bought her son, Alexander, a Six Flags season pass online. She submitted Alexander’s personal information and read that Alexander would complete the sign-up process at the park. No details described what the sign-up process would entail.

After showing his online receipt at Six Flags, Alexander was brought to an office to provide the customary thumb scan. Alexander’s thumb scan, along with the season pass card, was required to permit him to enter the various rides. He was not given any information about how his thumb scan would be stored or used …

Pure Privacy, Jeffrey Bellin

Northwestern University Law Review

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy’s appeal has grown beyond those authors’ wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

Pure Privacy, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means. The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Becoming Visible, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

This Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship.

Nudging Humans, Brett Frischmann

Faculty Publications

Behavioral data can and should inform the design of private and public choice architectures. Choice architects should steer people toward outcomes that make them better off (according to their own interests, not the choice architects’) but leave it to the people being nudged to choose for themselves. Libertarian paternalism can and should provide ethical constraints on choice architects. These are the foundational principles of nudging, the ascendant social engineering agenda pioneered by Nobel Prize winning economist Richard Thaler and Harvard law professor Cass Sunstein.

The foundation bears tremendous weight. Nudging permeates private and public institutions worldwide. It creeps into the …

Liberty And Health, Frank Griffin

University of Arkansas at Little Rock Law Review

Liberty is the essence of human nature and is necessary for optimal health. During the COVID-19 pandemic, the government placed unprecedented restrictions on personal liberty in the name of public health, confining millions of Americans to their homes, forcing hundreds of thousands of businesses and parks to close, shuttering abortion clinics, heavily regulating churches, monitoring gatherings in private homes, restricting interstate travel, and shifting disease burdens onto protected populations. Personal liberty is sustenance for individual health. Medical principles of patient autonomy, patient privacy, and social justice are closely related to legal concepts of personal liberty, the liberty of constitutional privacy, …

Personal Data Privacy And Protective Federal Legislation: An Exploration Of Constituent Position On The Need For Legislation To Control Data Reliant Organizations Collecting And Monetizing Internet-Obtained Personal Data, Giovanni De Meo

Dissertations

In the past twenty years, the business of online personal data collection has grown at the same rapid pace as the internet itself, fostering a multibillion-dollar personal data collection and commercialization industry. Unlike many other large industries, there has been no major federal legislation enacted to monitor or control the activities of organizations dealing in this flourishing industry. The combination of these factors together with the lack of prior research encouraged this research designed to understand how much voters know about this topic and whether there is interest in seeing legislation enacted to protect individual personal data privacy.

To address …

Torn Between Institutionalisation & Judicialisation: The Demise Of The Eu-Us Privacy Shield, Elaine Fahey, Fabien Terpan

Indiana Journal of Global Legal Studies

In July 2016, the EU-US (European Union-United States) Privacy Shield came into force, replacing the EU-US Safe Harbour, to address the concerns around data collection and privacy that arose in the case of Schrems v. European Data Commissioner (C-362/14). The Court of Justice of the European Union (CJEU) in its ruling known as Schrems I took a position in defence of privacy in the context of Edward Snowden's revelations on the National Security Agency's (NSA) surveillance programs. This context had already spurred the development of several instruments and enforcement regimes, such as the General Data Protection Regulation (GDPR), adopted in …

23rd Annual Open Government Summit: Attorney General State Of Rhode Island : Access To Public Records Act & Open Meetings Act July 30, 2021, Office Of The Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

23rd Annual Open Government Summit: Access To Public Records Act, Open Meetings Act Powerpoint Presentation 07-30-2021, Office Of Attorney General State Of Rhode Island, Peter F. Neronha

School of Law Conferences, Lectures & Events

No abstract provided.

Private Lives At Home And Public Lives In Court: Protecting The Privacy Of Federal Judges' Home Addresses, Hannah Elias Sbaity

Journal of Intellectual Property Law

Targeted murders of federal judges and their families at their private homes date back to May 29, 1979. Most recently, in July 2020, Judge Esther Salas’s only son, Daniel, was murdered and her husband near-fatally shot at their home. Individuals wishing to inflict such harm or death at federal judges’ homes have been able to do so because of federal judges’ publicly available home addresses. Because personally identifying information (PII) is defined differently from statute to statute, home addresses largely remain public information in most states and can be found in real estate records, data broker websites, social media platforms, …

A Deep Dive Into Technical Encryption Concepts To Better Understand Cybersecurity & Data Privacy Legal & Policy Issues, Anthony Volini

Journal of Intellectual Property Law

Lawyers wishing to exercise a meaningful degree of leadership at the intersection of technology and the law could benefit greatly from a deep understanding of the use and application of encryption, considering it arises in so many legal scenarios. For example, in FTC v. Wyndham1 the defendant failed to implement nearly every conceivable cybersecurity control, including lack of encryption for stored data, resulting in multiple data breaches and a consequent FTC enforcement action for unfair and deceptive practices. Other examples of legal issues requiring use of encryption and other technology concepts include compliance with security requirements of GLBA & HIPAA, …

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

The Commercialization Of Crime Solving: Ethical Implication Of Forensic Genetic Genealogy, Hannah Lee

Honors Theses

With the advancement of DNA technology and expansion of direct-to-consumer DNA services, a growing number of cold cases have been solved using a revolutionary new investigative method: familial DNA mapping. While the technique has been lauded by law enforcement as revolutionizing criminal identification, others are concerned by the privacy implications and impact on the family structure. In this thesis I will draw on communitarian, liberal rights, utilitarian, and social justice arguments for and against the practice. I conclude that this method has the potential to increase security and provide justice for victims and families, but absent comprehensive regulation and privacy …

Discussing Privacy In Sec Subpoena Practice After Carpenter V. United States, William A. Ballentine

Chicago-Kent Law Review

No abstract provided.

The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy, Meher Babbar

Northwestern University Law Review

Prisoners’ rights to bodily privacy under the Fourth Amendment are limited, allowing detention officials to strip-search them for contraband. The extent to which the Fourth Amendment protects prisoners, however, is uncertain. Questions regarding whether strip searches require reasonable suspicion and the manner in which officials may conduct strip searches have troubled courts for decades. In the absence of clear guidance from the Supreme Court, courts have reached inconsistent conclusions, imperiling the human rights and dignity of prisoners. This Note argues that courts should define and apply prisoners’ rights to bodily privacy with reference to international human-rights law, specifically the United …

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …

Protecting The Privacy Of The Worker In Light Of The Development Of Modern Means Of Communication: A Comparative Study Of The Uae And French Laws, Pierre Mallet

UAEU Law Journal

The concept of privacy has evolved a lot due to the tremendous scientific development that humanity has achieved in recent decades. The massive use of computers and the Internet in all areas has given rise to new aspects of privacy. This concept now concerns calls, personal photos, recordings, the use of social networks and personal conversations. Through this research, we want to inform the reader about the rules governing the protection of the privacy of an employee in the field of computer science in the light of the legal texts applied in UAE laws, or at least clarify the positions …

New Technology And The Right To Privacy: Do E-Scooters Implicate The Fourth Amendment?, Alexander P. Carroll

Journal of the National Association of Administrative Law Judiciary

The Fourth Amendment protects individual’s right to privacy from unwarranted searches and seizures, but the analysis for when the Fourth Amendment applies has become more complicated as new technology is developed. E-scooters are a new piece of technology which may implicate the Fourth Amendment. Cities across the country are beginning to require the mobility companies which provide e-scooter services to turn over location data in order to receive an operating permit. This article first provides a background of the Fourth Amendment, then provides details regarding the new city regulations. The article includes a discussion of the privacy concerns as well …

Hybrid Federalism And The Employee Right To Disconnect, Paul M. Secunda

Pepperdine Law Review

The federal Occupational Safety and Health Administration (OSHA) administers specific workplace and health standards that generally and expressly preempt the entire field of workplace safety and health law. However, where such federal OSHA standards do not exist or states have developed their own approved OSHA plans, OSHA does not merely set a regulatory floor either. A type of “hybrid federalism” has been established, meaning a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to …

Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo

Washington Law Review

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …

The Norms Of Algorithmic Credit Scoring, Nikita Aggarwal

Articles

This article examines the growth of algorithmic credit scoring and its implications for the regulation of consumer credit markets in the UK. It constructs a frame of analysis for the regulation of algorithmic credit scoring, bound by the core norms underpinning UK consumer credit and data protection regulation: allocative efficiency, distributional fairness and consumer privacy (as autonomy). Examining the normative trade-offs that arise within this frame, the article argues that existing data protection and consumer credit frameworks do not achieve an appropriate normative balance in the regulation of algorithmic credit scoring. In particular, the growing reliance on consumers' personal data …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Achieving Privacy: Costs Of Compliance And Enforcement Of Data Protection Regulation, Anupam Chander, Meaza Abraham, Sandeep Chandy, Yuan Fang, Dayoung Park, Isabel Yu

Georgetown Law Faculty Publications and Other Works

Is privacy a luxury for the rich world? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement, or too expensive for governments to enforce. This paper is the first to offer a review of surveys of costs of compliance, and to summarize national budgets for enforcement. The study shows that while privacy may indeed prove costly for companies to implement, it is not too costly for governments to enforce. This study will help inform governments as they fashion and implement privacy laws to address the “privacy enforcement gap”—the disparity between the …

Protection Of Data In Armed Conflict, Robin Geiss, Henning Lahmann

International Law Studies

This article presents a novel way to conceptualize the protection of data in situations of armed conflict. Although the question of the targeting of data through adversarial military cyber operations and its implications for the qualification of such conduct under International Humanitarian Law has been on scholars’ and states’ radar for the last few years, there remain a number of misunderstandings as to how to think about the notion of “data.” Based on a number of fictional scenarios, the article clarifies the pertinent terminology and makes some expedient distinctions between various types of data. It then analyzes how existing international …