Privacy Law Commons^™

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

Symposium Foreword: Privacy Rights And Proactive Investigations: Emerging Constitutional Issues In Law Enforcement, Thiru Vignarajah

University of Baltimore Law Review

No abstract provided.

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Utah OnLaw: The Utah Law Review Online Supplement

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …

Privacy For Social Networking, Connie Davis Powell

University of Arkansas at Little Rock Law Review

This article begins by considering the emergence of social networks as a major medium of communication and posits that the success of social networks is attributable to their users' willingness to share their information. Next, the article considers the expectation of privacy for users of social networks and whether such expectation is reasonable. In particular, the article discusses the privacy policies and legal terms governing the use of social networks, and tracks the evolution of such terms and policies as they slowly whittle away user control over time. The article then discusses public outcry regarding the disclosure of information contrary …

Wiretapping The Internet: The Expansion Of The Communications Assistance To Law Enforcement Act To Extend Government Surveillance, Christa M. Hibbard

Federal Communications Law Journal

Criminal use of the Internet to circumvent traditional government phone wiretaps has inspired the Obama Administration to create a proposal to expand the Communications Assistance to Law Enforcement Act ("CALEA"). CALEA was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards to enable government wiretapping. The proposed amendment of CALEA would allow the government to require all communications service providers to meet technical standards necessary to comply with a wiretap order. The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and …

Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson

Scholarly Articles

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney

Articles, Book Chapters, & Popular Press

With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …

The Supreme Court And Information Privacy, Fred H. Cate, Beth E. Cate

Articles by Maurer Faculty

Advances in technology—including the growing use of cloud computing by individuals, agencies, and organizations to conduct operations and store and process records—are enabling the systematic collection and use of personal data by state and federal governments for a variety of purposes.

These purposes range from battling crime and terrorism to assessing public policy initiatives and enforcing regulatory regimes. To aid these efforts, governments are promoting mandatory retention and reporting of data by online service providers and the expansion of laws that facilitate wiretaps to greater portions of the web.

The legal framework for protecting individual privacy within this growing world …

The Child Online Privacy Protection Act: The Relationship Between Constitutional Rights And The Protection Of Children, Sasha Grandison

University of the District of Columbia Law Review

No abstract provided.

From Facebook To Mug Shot: How The Dearth Of Social Networking Privacy Rights Revolutionized Online Government Surveillance, Junichi P. Semitsu

Pace Law Review

No abstract provided.

Social Media And The Vanishing Points Of Ethical And Constitutional Boundaries, Ken Strutin

Pace Law Review

No abstract provided.

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

School Discipline Of Cyber-Bullies: A Proposed Threshold That Respects Constitutional Rights, 45 J. Marshall L. Rev. 85 (2011), Laura Pavlik Raatjes

UIC Law Review

No abstract provided.

Free Speech On The Battlefield: Protecting The Use Of Social Media By America's Soldiers, 44 J. Marshall L. Rev. 1085 (2011), David Johnsen

UIC Law Review

No abstract provided.

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

The Constitutional And Contractual Controversy Of Suspicionless Drug Testing Of Public School Teachers, Amanda H. Cooley, Marka B. Fleming, Gwendolyn Mcfadden Wade

Oklahoma Law Review

No abstract provided.

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Cohen V. Google, Inc., Eirik Cheverud

NYLS Law Review

No abstract provided.

Personal Autonomy: Towards A New Taxonomy For Privacy Law, Yvonne F. Lindgren

Faculty Works

In 1965 the Supreme Court in Griswold v. Connecticut protected the right of married couples to receive contraceptives as a right of privacy. Since that time, scholarship in the area of privacy law has coalesced around two main themes: First, commentators have classified privacy cases to present a unified concept broad enough to encompass many contexts — from tort, to Fourth and Fifth Amendment search and seizure, to decisional autonomy case law. Second, there is vigorous debate whether decisional autonomy is properly sourced in privacy law. These inquiries leave unanswered an important question: What, if anything, has been the lasting …

Arrested Development: Arizona V. Gant And Article I, Section 7 Of The Washington State Constitution, Jacob R. Brown

Washington Law Review

In Arizona v. Gant, the United States Supreme Court held that the search of a vehicle incident to arrest is permissible in only two situations: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment; or (2) when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle. Because Gant expressed a standard more protective than that established by the Washington State Supreme Court, Gant induced a state of confusion in Washington, where it has long been maintained that article I, section 7 of the Washington …

Privacy Revisited: Gps Tracking As Search And Seizure, Bennett L. Gershman

Pace Law Review

Part I of this Article discusses the facts in People v. Weaver, the majority and dissenting opinions in the Appellate Division, Third Department decision, and the majority and dissenting opinions in the Court of Appeals decision. Part II addresses the question that has yet to be decided by the U.S. Supreme Court—whether GPS tracking of a vehicle by law enforcement constitutes a search under the Fourth Amendment. Part III addresses the separate question that the Court of Appeals did not address in Weaver—whether the surreptitious attachment of a GPS device to a vehicle constitutes a seizure under the Fourth Amendment. …

Doninger's Wedge: Has Avery Doninger Bridged The Way For Internet Versions Of Matthew Fraser?, 43 J. Marshall L. Rev. 439 (2010), Adam Dauksas

UIC Law Review

No abstract provided.