Privacy Law Commons^™

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

What Common Law And Common Sense Teach Us About Corporate Cybersecurity, Stephanie Balitzer

University of Michigan Journal of Law Reform

This Note examines the challenges of corporate cyberdefense and suggests an approach to mitigate them. Part I outlines the background of the corporate cyberdefense quandary and various cyberdefense strategies. Part II explores the current landscape of cybersecurity law in the United States and the regulatory infrastructure that governs cybercrimes. Part II also surveys case law that illustrates the legal loopholes and ambiguities corporations face when implementing cybersecurity measures. Finally, Part III argues that the proposed active defense model fails to comport with practical concerns and established legal principles. This Note’s comparative analysis of common law ‘defense of property’ principles and …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Information Escrows, Ian Ayres, Cait Unkovic

Michigan Law Review

A variety of information escrows - including allegation escrows, suspicion escrows, and shared-interest escrows - hold the promise of reducing the first-mover disadvantage that can deter people with socially valuable private information from disclosing that information to others. Information escrows allow people to transmit sensitive information to a trusted intermediary, an escrow agent, who only forwards the information under prespecified conditions. For example, an allegation escrow for sexual harassment might allow a victim to place a private complaint into escrow with instructions that the complaint be lodged with the proper authorities only if the escrow agent receives at least one …

Limits Of The Federal Wiretap Act's Ability To Protect Against Wi-Fi Sniffing, Mani Potnuru

Michigan Law Review

Adoption of Wi-Fi wireless technology continues to see explosive growth. However many users still operate their home Wi-Fi networks in unsecured mode or use publicly available unsecured Wi-Fi networks, thus exposing their communications to the dangers of "packet sniffing," a technique used for eavesdropping on a network. Some have argued that communications over unsecured Wi-Fi networks are "readily accessible to the general public" and that such communications are therefore excluded from the broad protections of the Federal Wiretap Act against intentional interception of electronic communications. This Note examines the Federal Wiretap Act and argues that the current Act's treatment of …

Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans

Michigan Telecommunications & Technology Law Review

This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to …

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

The Need For Revisions To The Law Of Wiretapping And Interception Of Email, Robert A. Pikowsky

Michigan Telecommunications & Technology Law Review

I argue that a person's privacy interest in his email is the same as his privacy interest in a telephone conversation. Moreover, the privacy interest in email remains unchanged regardless of whether it is intercepted in transmission or covertly accessed from the recipient's mailbox. If one accepts this assumption, it follows that the level of protection against surveillance by law enforcement officers should be the same[...] As technology continues to blur the distinction between wire and electronic communication, it becomes apparent that a new methodology must be developed in order to provide logical and consistent protection to private communications. The …

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 …

Criminalization Of True Anonymity In Cyberspace, The, George F. Du Pont

Michigan Telecommunications & Technology Law Review

The question of whether a state or the federal government can create a narrowly tailored restriction on cyberspace anonymity without violating the First Amendment remains unresolved[...]The Supreme Court has not directly addressed the issue, but it may soon consider the constitutionality of criminalizing certain kinds of cyber-anonymity in light of the unique nature of cyberspace. This comment explores the various forms of anonymity, examines the First Amendment status of anonymity in and outside of cyberspace, analyzes relevant scholarly commentary, and concludes that a narrowly tailored legislative restriction on "true" anonymity in cyberspace would not violate the First Amendment.

The Newsman's Privilege: Protection Of Confidential Associations And Private Communications, Wayne C. Dabb Jr., Peter A. Kelly

University of Michigan Journal of Law Reform

The purpose of this comment is to determine whether the confidential associations and-or private communications of a newsman are privileged.

The Right Of Privacy, Louis Nizer

Michigan Law Review

It is only during the last half-century that the law has recognized the "right to be let alone"-the right under certain circumstances to protect one's name and physiognomy from becoming public property.

No mention of such a right will be found in the works of the great political philosophers and tract-writers of the seventeenth and eighteenth centuries-Hobbes, Locke, Rousseau, Montesquieu, Spencer, Paine. In discoursing on "natural rights," "the state of nature," "social contract," and "the inalienable rights of man," they were concerned only with the power of the state to abridge the liberties of the people. Society had not yet …

Libel And Slander - Implied Representation That Plaintiff Consented To Write Her Love Story As Libel Per Se, Michigan Law Review

Michigan Law Review

Plaintiff brought an action for libel against defendant for publishing in its magazine a story, which it represented as being written by plaintiff, purporting to relate indiscreet intimacies between plaintiff and a certain man. Defendant admitted the false representation of authorship, but requested a directed verdict after submitting in evidence testimony given by plaintiff in a prior law suit, in which she was said to have admitted intimacies fully as capable of bringing her into disrepute as were those published by defendant. On refusal by the court to direct a verdict, defendant excepted and appealed on the ground that the …

Torts - Right Of Privacy - Radio Broadcasting, Michigan Law Review

Michigan Law Review

Plaintiff, a chauffeur, had been the victim of a hold-up and shooting, suffering serious injury. Defendant sponsored a radio broadcast in which plaintiff's name was used dramatizing the affair. On hearing the broadcast, plaintiff sued in tort alleging that he suffered mental anguish and physical shock which resulted in impairing his ability to drive and caused him to be discharged from his job. Held, defendant's motion to dismiss denied, as plaintiff had stated a cause of action for invasion of a right of privacy. Mau v. Rio Grande Oil, Inc., (D. C. Cal. 1939) 28 F. Supp. 845.

Torts - Unauthorized Publication Of Photograph - Invasion Of Right Of Privacy, James W. Mehaffy

Michigan Law Review

Defendant newspaper published an advertisement containing a picture of plaintiff, a radio artist, in a bathing suit, under the mistaken belief that it was a picture of a member of a vaudeville troupe whose name appeared in the advertisement, and who was described as an "exotic red-haired Venus" who endorsed a certain brand of whole-wheat bread as a means of "keeping that sylph-like figure." Plaintiff alleged that the vaudeville act was a "sensual performance or sex parade" and was composed of the "cheapest class of chorus girls." Held, that the advertisement was an invasion of plaintiff's right of privacy …

Libel - Right Of Privacy -Auction Sale Of Debts, Gerald M. Stevens

Michigan Law Review

A creditor put his claim into the hands of one Power, who held himself out as an advertiser of accounts for sale. Power threatened several times by letter to advertise the debtor's account for sale at auction unless it was paid immediately. No payment was made; and a "flaming orange handbill" was printed and circulated about the debtor's neighborhood. It offered for sale to the highest bidder the debtor's and twenty-three other accounts. It contained, further, the statement that all accounts were guaranteed correct and undisputed and a solicitation for merchants' accounts to be similarly disposed of. Thereupon the debtor …

Torts - Right Of Privacy - Newsreel As Violation Of, Royal E. Thompson

Michigan Law Review

Section 51 of the New York Civil Rights Law provides that: "Any person whose name, portrait or picture is used . . . for advertising purposes or for the purposes of trade without the written consent first obtained . . . may maintain an equitable action . . . to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use . . . . " Held, publication by defendant of a newsreel showing plaintiff and other stout women exercising in a gymnasium with the aid of unique …