Law Commons^™

Electronic Health Records And Medical Big Data: Law And Policy, Sharona Hoffman

Faculty Publications

This book helps readers gain an in-depth understanding of electronic health record (EHR) systems, medical big data, and the regulations that govern them. It is useful both as a primer for students and as a resource for knowledgeable professionals. The book analyzes the shortcomings and benefits of EHR systems, explores the law's response to the technology’s adoption, highlights gaps in the current legal framework, and develops detailed recommendations for regulatory, policy, and technological improvements. Electronic Health Records and Medical Big Data addresses not only privacy and security concerns, but also other important challenges, such as those related to data quality …

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Fourth Amendment Implications Of Police-Worn Body Cameras, Erik Nielsen

St. Mary's Law Journal

Abstract forthcoming.

The Right To Silence V. The Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones

UF Law Faculty Publications

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based …

Protecting The Public From Itself: Paternalism And Irony In Defining Newsworthiness, Clay Calvert

UF Law Faculty Publications

In a speech more than 150 years ago, author and British politician Benjamin Disraeli' proclaimed it "much easier to be critical than to be correct." Viewed in that sagacious light, this article surely traverses the low road, not the high one. It offers, in discussion-sparking spirit, a few slight criticisms of Professor Amy Gajda's conclusions and suggestions in her timely, meticulously researched and example-laden book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Specifically, Part I of this Article encapsulates the problems identified by Professor Gajda for journalism today - and, more broadly, troubles for a …

How Smart Is Too Smart?: How Privacy Concerns Threaten Modern Energy Infrastructure, Megan Mclean

Vanderbilt Journal of Entertainment & Technology Law

Smart meters are integral to the health of our electric grid and are critical to a reliable, affordable, and efficient energy economy. Yet, collection of smart meter data is raising privacy concerns that are inspiring pockets of resistance to smart meter installation around the country. The fact that these data, like many other kinds of personal information, can and often do flow to the government should not prevent their collection and use. It is critical for environmental and energy regulators to have access to this data to maximize the potential of our energy system. On the state level, several legislatures …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Cross-Cutting Conflicts: Developments In The Use Of Norwich Orders In Internet Defamation Cases, Robert Currie

Articles, Book Chapters, & Popular Press

The anonymity afforded to those wishing to post commentary on the internet has given rise to a number of procedural issues in Canadian case law. This paper focuses on one such issue: the need for prospective plaintiffs in defamation actions to "unmask" anonymous commentators in order to be able to bring proceedings against them. It tracks the increasing use of the "Norwich order," A.K.A an order for pre-action discovery, as a means of accomplishing this objective, by examining the leading case of Warman v. Fournier and analyzing how this issue has played out in litigation to date. It also considers …

Electronic Devices At The Border: The Next Frontier Of Canadian Search And Seizure Law?, Robert Currie

Articles, Book Chapters, & Popular Press

Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying section 8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada’s borders, however, do not reflect this case law. This is a situation made all the more complex by the generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Need For Informed Consent In The Age Of Ubiquitous Human Testing, Caitlyn Kuhs

Loyola of Los Angeles Law Review

No abstract provided.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

The Law And Policy Of People Analytics, Matthew T. Bodie, Miriam A. Cherry, Marcia L. Mccormick, Jintong Tang

All Faculty Scholarship

Leading technology companies such as Google and Facebook have been experimenting with people analytics, a new data-driven approach to human resources management. People analytics is just one example of the new phenomenon of “big data,” in which analyses of huge sets of quantitative information are used to guide decisions. Applying big data to the workplace could lead to more effective outcomes, as in the Moneyball example, where the Oakland Athletics baseball franchise used statistics to assemble a winning team on a shoestring budget. Data may help firms determine which candidates to hire, how to help workers improve job performance, and …

Newsgathering Takes Flight In Choppy Skies: Legal Obstacles Affecting Journalistic Drone Use, Clay Calvert, Charles D. Tobin, Matthew D. Bunker

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines legal challenges confronting journalists who use drones to gather images. Initially, it traces the history of drones and the Federal Aviation Administration’s efforts to regulate them, as well as new state legislation that aims to restrict drones. This Article then illustrates that a wide array of legal remedies already exist for individuals harmed by journalistic drone usage, and it argues that calls for additional, piecemeal state laws to regulate drones are unnecessary and unduly hinder First Amendment interests in newsgathering and the public’s right to know. Furthermore, this Article asserts that the reasonable-expectation-of-privacy jurisprudence developed in aerial …

Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers

University of Michigan Journal of Law Reform

Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …

How Should The Law Think About Robots?, Neil M. Richards, William D. Smart

Scholarship@WashULaw

The robots are coming. We don’t mean this in a scary, apocalyptic way, like in The Terminator or Battlestar Galactica, or in a tongue-in-cheek way, like in the Flight of the Conchords song “The Humans are Dead.” What we mean is this: Robots and robotic technologies are now mature enough to leave the research lab and come to the consumer market in large numbers. These early technologies are just the start, and we might soon be witnessing a personal robotics revolution. These systems have the potential to revolutionize our daily lives and to transform our world in ways even more …

Big Data And The Future For Privacy, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

In our inevitable big data future, critics and skeptics argue that privacy will have no place. We disagree. When properly understood, privacy rules will be an essential and valuable part of our digital future, especially if we wish to retain the human values on which our political, social, and economic institutions have been built. In this paper, we make three simple points. First, we need to think differently about "privacy." Privacy is not merely about keeping secrets, but about the rules we use to regulate information, which is and always has been in intermediate states between totally secret and known …

The Atlantic Divide On Privacy And Speech, Neil M. Richards, Kirsty Hughes

Scholarship@WashULaw

When does a right to privacy become a right of censorship? Conversely when does freedom of speech become a carte blanche to violate the dignity and autonomy of others? Discussions of privacy throughout the world frequently boil down to these questions. Despite the parallel relationships between privacy and speech in the United Kingdom and America, and despite their shared legal heritage, the two legal systems have struck the balance in radically different ways. In the United States, decisions balancing privacy and the First Amendment have invariably favoured the free speech interest, at least where a press defendant published lawfully-obtained “newsworthy” …

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

People Analytics And The Regulation Of Information Under The Fair Credit Reporting Act, Pauline Kim, Erika Hanson

Scholarship@WashULaw

People analytics — the use of big data and computer algorithms to make personnel decisions — has been drawing increasing public and scholarly scrutiny. Concerns have been raised that the data collection intrudes on individual privacy, and that algorithms can produce unfair or discriminatory results. This symposium contribution considers whether the Fair Credit Reporting Act’s regulation of consumer information used for employment purposes can respond these concerns. The FCRA establishes certain procedural requirements, and these can sometimes help individual workers challenge inaccurate information about them. However, the statute does little to curb intrusive data collection practices or to address the …

The Sixth Pillar Of Anti-Money Laundering Compliance: Balancing Effective Enforcement With Financial Privacy, Maria A. De Dios

Brooklyn Journal of Corporate, Financial & Commercial Law

The U.S. government has responded to the increase of financial crimes, including money laundering and terrorist financing, by requiring that financial institutions implement anti-money laundering compliance programs within their institutions. Most recently, the Financial Crimes Enforcement Network exercised its regulatory powers, as authorized by the Treasury Department, by proposing regulations that now explicitly add customer due diligence to the preexisting anti-money laundering regime. The policy behind the government’s legislative and regulatory measures is clear—financial institutions must ensure that they are protected from and not aiding in the illegal efforts of criminals. The complexity and insidiousness of these financial crimes makes …

When The Default Is No Penalty: Negotiating Privacy At The Ntia, Margot E. Kaminski

Publications

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated …

Classification Standards For Health Information: Ethical And Practical Approaches, Craig Konnoth

Publications

Secondary health information research requires vast quantities of data in order to make clinical and health delivery breakthroughs. Restrictive policies that limit the use of such information threaten to stymie this research. While the Notice of Proposed Rulemaking (NPRM) for the new Common Rule permits patients to provide broad consent for the use of their information for research, that policy offers insufficient flexibility. This Article suggests a flexible consenting system that allows patients to consent to a range of privacy risks. The details of the system will be fleshed out in future work.

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Vanderbilt Journal of Entertainment & Technology Law

It has long been discussed whether individuals should have a "right to be forgotten" online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v. Agencia Espafiola de Proteccion de Datos, the Court of Justice of the European Union (CJEU) addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results in searches made on the basis of their name. It found that they do have this right--which can be best described as …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …

Privacy, Public Disclosure, Police Body Cameras: Policy Splits, Mary D. Fan

Articles

When you call the police for help—or someone calls the police on you—do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives—after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure.

This Article sheds light on the balances …

The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley

Brooklyn Journal of International Law

In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …

In-The-Wild Residual Data Research And Privacy, William B. Glisson, Tim Storer, Andrew Blyth, George Grispos, Matt Campbell

Journal of Digital Forensics, Security and Law

As the world becomes increasingly dependent on technology, researchers in both industry and academia endeavor to understand how technology is used, the impact it has on everyday life, the artifact life-cycle and overall integrations of digital information. In doing so, researchers are increasingly gathering 'real-world' or 'in-the-wild' residual data, obtained from a variety of sources, without the explicit consent of the original owners. This data gathering raises significant concerns regarding privacy, ethics and legislation, as well as practical considerations concerning investigator training, data storage, overall security and data disposal. This research surveys recent studies of residual data gathered in-the-wild and …