Privacy Law Commons^™

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Is There A Fundamental Right To Privacy When An Educational Institution Requires A Student To Disclose Proof Of His Or Her Vaccination Status?, Mary D. Fatscher

Touro Law Review

In 2020, the coronavirus disease (“COVID-19”) dominated the world. Although the public has progressively become more informed about the disease and how to safeguard itself, challenges persist as there is still much unknown. Aside from wearing masks, social distancing, and despite its undetermined consequences, the COVID-19 vaccination has emerged as a primary solution to substantially reducing the incidence and severity of the virus in our country. Many COVID-19 vaccine mandates were initiated once three pharmaceutical and biotechnology companies including Pfizer-BioNTech, Moderna, and Johnson & Johnson received Emergency Use Authorization from the Food and Drug Administration (“FDA”).

Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, Charles E. Volkwein

Privacy Certificate Student Publications

Today’s availability of massive data sets, inexpensive data storage, and sophisticated analytical software has transformed the capabilities of law enforcement and created new forms of “Big Data Policing.” While Big Data Policing may improve the administration of public safety, these methods endanger constitutional protections against warrantless searches and seizures. This Article explores the Fourth Amendment consequences of Big Data Policing in three parts. First, it provides an overview of Fourth Amendment jurisprudence and its evolution in light of new policing technologies. Next, the Article reviews the concept of “Big Data” and examines three forms of Big Data Policing: Predictive Policing …

“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee

University of Michigan Journal of Law Reform

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter …

Dna Dystopia: How The National Security Apparatus Could Map The Entire Genome Of America Without Violating The Fourth Amendment Or The Constitutional Right To Privacy, Elias Rios Iii

Brooklyn Law Review

Over the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to neutralize …

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely …

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …

Telephone Pole Cameras Under Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.

These questions are complicated because Fourth Amendment law is complicated. This is especially the case today as Fourth Amendment law is in a transitional phase, caught between older and newer paradigms …

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

Smart Meters As A Catalyst For Privacy Law, Matthew Tokson

Utah Law Faculty Scholarship

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Accidental Wiretaps: The Implications Of False Positives By Always-Listening Devices For Privacy Law & Policy, Lindsey Barrett, Ilaria Liccardi

Oklahoma Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

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 …

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

St. Mary's Law Journal

Abstract forthcoming.

Note: The "Border" Of Constitutional Electronic Privacy Rights: Electronic Searches And Seizures At The United States' Territorial Limits, Ryan Garippo

Notre Dame Journal on Emerging Technologies

In the recent challenge brought before the First Circuit, the court was not required to directly answer what level of particularized suspicion is required for a forensic search. Although, its holding is consistent with the jurisprudence set forth by both the Fourth and Eleventh Circuits. Furthermore, it is important to note that there have been legal challenges brought on this issue in the Fifth, Seventh, and Tenth Circuits. However, in each of these cases, the court chose not to decide the constitutional question because it was not outcome determinative for the litigants in question. This disagreement between the federal circuit …

Note: Facial Recognition Technology And The Constitution, Mark Simonitis

Notre Dame Journal on Emerging Technologies

Over the past several years, we have seen an increase in the adoption and use of facial recognition technology (FRT). Both private corporations and government organizations have increasingly used this technology over the past several years, and law enforcement agencies have been just as eager to utilize FRT in their operations. The potential uses for this technology in a law enforcement capacity are numerous. For example, FRT could be used to identify criminals whose faces were caught on surveillance footage, or it could be used to help identify citizens during border crossings. However, it is easy to imagine how an …

The Genetic Panopticon: Genetic Genealogy Searches And The Fourth Amendment, Genevieve Carter

Northwestern Journal of Technology and Intellectual Property

As consumer DNA testing gains widespread popularity, so has law enforcement’s interest in leveraging genetic databases for criminal investigations. Consumer DNA testing products like 23andMe and Ancestry allow private individuals access to their genetic data on private databases. However, once coded, genetic data is free to be downloaded by users and uploaded to public databases. Police identify suspects by uploading cold case DNA to public genetic databases and find familial matches. If they identify a familial match, they narrow the field of suspects using traditional methods of investigation, which often includes extracting suspect DNA from a piece of their abandoned …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

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 …

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 …

Can I Have Some Privacy?: A Look Into The Unfortunate Truth Of Pregnancy Tests Throughout Sports And The Negative Impact On Female Athletes, Hannah Rogers

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

The Jones Trespass Doctrine And The Need For A Reasonable Solution To Unreasonable Protection, Geoffrey Corn

Arkansas Law Review

Each day that Houston drivers exit from Interstate 45 to drive to downtown Houston, they pass an odd sight. Nestled within some bushes is an encampment of tents. This encampment is very clearly located on public property adjacent to the interstate highway, and equally clearly populated by homeless individuals. While local police ostensibly tolerate this presence, at least temporarily, the sight frequently evokes an image in my mind of a police search of those tents. This thought is especially prominent on the days I am driving to my law school, South Texas College of Law Houston, to teach my federal …

Trading Privacy For Promotion? Fourth Amendment Implications Of Employers Using Wearable Sensors To Assess Worker Performance, George M. Dery Iii

Northwestern Journal of Law & Social Policy

This Article considers the Fourth Amendment implications of a study on a passive monitoring system where employees shared data from wearables, phone applications, and position beacons that provided private information such as weekend phone use, sleep patterns in the bedroom, and emotional states. The study’s authors hope to use the data collected to create a new system for objectively assessing employee performance that will replace the current system which is plagued by the inherent bias of self-reporting and peer-review and which is labor intensive and inefficient. The researchers were able to successfully link the data collected with the quality of …