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Full-Text Articles in Privacy Law

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner Mar 2024

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner

Brooklyn Law Review

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my …


How (Not) To Deal With The Bubble Effect In Cyberspace: The Case Of The Eu And Digital Services Act, João Tornada Dec 2023

How (Not) To Deal With The Bubble Effect In Cyberspace: The Case Of The Eu And Digital Services Act, João Tornada

Brooklyn Journal of International Law

Deliberative democracies are based on an ideal process of speech and dialogue that fosters an “uninhibited, robust, and wide-open” public discourse sphere. In cyberspace, social networks and search engine platforms largely operate with recommender systems that tailor content according to the users' interests and online behavior (“profiling”), thus segregating them from different points of view (“bubble effect”). While this personalization of content is particularly efficient to promote commercial goods and services, when it comes to information of common interest, especially on political matters, it undermines consensus-building dialogue and threatens democratic ideals. The theory of a free “marketplace of ideas” justifies …


Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane Dec 2021

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …


“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias Jun 2021

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.


The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger Dec 2019

The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger

Brooklyn Journal of International Law

Germany has the strictest genetic engineering laws in the world and bans virtually all kinds of embryonic gene editing. Since the invention of CRISPR, however, embryonic gene editing is more precise, and the possibilities of curing genetic diseases are more real than ever. This Note will argue for the right to embryonic gene editing through an analysis of German constitutional privacy and right to life jurisprudence. Ultimately, this Note argues for a right to procreate under German law that is backed by the state’s affirmative duty to encourage and protect life. When the technology is available, German Law should not …


Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq Dec 2019

Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq

Journal of Law and Policy

This Article introduces an underappreciated space in which protected health information (“PHI”) remains largely unprotected, a fact that will become only more problematic as clinical medicine increasingly turns to genomics. The past decade has seen significant advances in the prevention of birth defects, especially with the introduction of clinical preconception, prenatal, and neonatal genomic sequencing. Parental access to the results of embryonic and fetal clinical sequencing is critical to reproductive autonomy; results can provide parents with important considerations in determining whether to seek or avoid conception, as well as in deciding whether to carry a pregnancy to term. The information …


The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn Dec 2019

The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …


Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz Oct 2018

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …


Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon Dec 2016

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …


Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein Jan 2016

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …