Privacy Law Commons^™

Technology And The Internet: The Impending Destruction Of Privacy By Betrayers, Grudgers, Snoops, Spammers, Corporations And The Media, Clifford S. Fishman

Scholarly Articles

This Article reviews how the Internet and related developments-technological, social, and legal-have magnified the threat to privacy posed by private individuals, commercial enterprises, and the media. It offers a brief overview of the current threats to privacy from sources other than the government, and, in particular, the impact of the Internet in creating or magnifying those threats. Part I discusses the threat to privacy in general, examining how the Internet and developments in surveillance technology, in information storage and retrieval, in dissemination of information, sound, and images, and changes to the informal "social contract" that defines general standards have all …

Senate To Weigh Controversial Cybercrime Treaty, Gavin Mhley

Public Interest Law Reporter

No abstract provided.

Information Privacy In Virtual Worlds: Identifying Unique Concerns Beyond The Online And Offline Worlds, Tal Z. Zarksy

NYLS Law Review

No abstract provided.

Virtual Crimes, Gregory Lastowka, Dan Hunter

NYLS Law Review

No abstract provided.

Turning Worms: Some Thoughts On Liabilities For Spreading Computer Infections, Richard Owens

Canadian Journal of Law and Technology

Two aspects of the virus/worm liability problem are of particular note. The first is how tightly the Internet binds together many possible defendants; those who build and run it, those who populate it with increasingly complex electronic commerce Web sites, those who provide terminal software, those who send electronic mails, those who design its security algorithms, those who insure it, and those who hack it, amongst others.

The second aspect is how speculative such a review is. Little case law pertains. Even the language of the law(what does it really mean when we assess liability on the basis of a …

Les Consommateurs Et Les Clubs Vidéo Ont-Ils Le Droit De Modifier Les Films À Leur Guise?, René Pépin

Canadian Journal of Law and Technology

Dans un premier temps, nous voulons étudier le litige en cours. Même si aucune décision sur le fond n’est susceptible d’être rendue à court terme, nous pouvons scruter les prétentions des parties et voir l’état du droit aux États-Unis sur ce sujet. Nous examinerons ensuite comment cette problématique serait traitée au Canada.

Et c’est ici que la question soulevée dans le litige revêt tout son intérêt, car elle met en jeu des notions fonda- mentales en matière de droit d’auteur. On devra ainsi se demander si le fait pour une personne ou une entreprise de retrancher des séquences représentant quelques …

Law As Film: Representing Justice In The Age Of Moving Images, Shulamit Almog, Ely Aharonson

Canadian Journal of Law and Technology

Two main theses are presented here. The first is that there is a conceptual resemblance between the ways in which messages are transmitted in the courtroom and the ways in which they are transmitted in the cinema. The second is that the evolution of legal procedure is being influenced by developments taking place in visual culture generally and film specifically. Taken together, these theses lead to the conclusion that the development of a theory of ‘‘law-as-film’’ can provide insights into the contemporary practice of law that might otherwise be overlooked.

Foreign Investment Restrictions As Industrial Policy: The Case Of Canadian Telecommunications, Robert Crandall, Hal Singer

Canadian Journal of Law and Technology

We assess the economic harms that would accrue if Canada were to adopt asymmetric rules of foreign ownership for incumbent carriers and entrants. We explain the current Canadian regulatory climate surrounding foreign investment in Canadian telecommunications. Competition in the telecommunications industry is generally robust, which suggests that rules aimed at favouring entrants are not necessary. Moreover, Canadian entrants are equally capable of attracting foreign capital as Canadian incumbents, which suggests that foreign investment rules aimed at favouring entrants are especially unwise.

Next, we review the U.S. attempt to stimulate competition in local telecommunications markets through an analogous form of asymmetrical …

The International Privacy Regime, Tim Wu

Faculty Scholarship

Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.

First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that …

The Right Of Privacy Of Employees With Respect To Employer-Owned Computers And E-Mails, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

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 …

Intellectual Property Laws In Harmony With Nafta: The Courts As Mediators Between The Global And The Local, Myra J. Tawfik

Canadian Journal of Law and Technology

This paper will argue that domestic courts can pro- vide a forum within which to mediate between these two extremes, to reconcile the ‘‘global’’ and the ‘‘local’’ — but that the courts themselves must adapt to meet the challenges that globalization places upon them. More specifically, the paper begins by setting out a framework for understanding harmonization of laws under NAFTA as one that encourages rather than eliminates diversity of law. The paper then studies the prevailing approaches to statutory interpretation that Canadian courts, most especially the Supreme Court of Canada and the Federal Court of Appeal, have been employing …

Computer Law By George S. Takach (Toronto: Irwin Law Inc., 2000, 2nd Edition), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Banning Bans On New Reproductive And Novel Genetic Technologies, Matthew Herder

Canadian Journal of Law and Technology

Commentators argue that statutory prohibitions with the force of the criminal law should not be used to regulate new reproductive technologies (NRTs) and novel genetic technologies (NGTs). Bill C-13, the Assisted Human Reproduction Act, however, codifies 10 criminal bans. This paper considers the merits of the various arguments levied against Bill C-13, and the corollary claim that only a "non-prohibitive" model of legislation befits NRTs and NGTs. Three types of arguments are used to critique criminal bans: (1) "Structural" arguments hinge on the constraints of the Canadian legal system - legislation complete with prohibitions runs afoul of the Constitution Act …

Student Protector, Internet Provider, Or Contractual Party? An Examination Of The Legal Relationship Between A University And Its Students, Anna Christine Milot

Canadian Journal of Law and Technology

The legal relationship between a university and its students is becoming increasingly complex as the use of technology spreads. Accordingly, it is important to define a university’s responsibilities and legal boundaries in order to understand the liability universities can potentially incur when dealing with students. Each Canadian university is unique in its founding and enacting legislation, as will be discussed further later. The individuality of Canada’s universities means that the questions raised in this paper cannot be given answers that can necessarily be generalized across universities. The approach to analysis in this paper, however, is applicable to any of the …

Technology And International Trade: Wille The Real Transformer Please Stand Up?, Todd Weiler

Canadian Journal of Law and Technology

The primary driver of change in Canada’s cultural sector has not been some kind of contrived, neo- liberal plot imposed upon an unsuspecting public with the promise of ‘‘jobs, jobs, jobs.’’ Rather, it has been technology. The role for liberalised trade and investment treaties comes only in the form of a conditioning force, limiting the panoply of choices available to govern- mental officials who want to respond to the changes being wrought by technological advances.

This paper begins with some brief definitions, moving next to an elaboration of its thesis, and finally explaining the application of this thesis to some …

Anonymity And The Supreme Court's Model Of Expression: How Should Anonymity Be Analysed Under Section 2(B) Of The Charter?, Peter Carmichael Keen

Canadian Journal of Law and Technology

The first part of this article will discuss what anonymity is, and the costs and benefits that anonymity confers on expressive activity. I will demonstrate that anonymity is a double-edged sword in that it can both promote and harm free expression. In the second part, I will suggest that there is no doubt that anonymity can be protected under section 2(b) of the Charter. When I first began this article, I intended to examine ‘‘whether’’ anonymity can be constitutionally protected under section 2(b). As my research progressed, I quickly realised that I was asking the wrong question. I discovered that …

Snake-Oil Security Claims The Systematic Misrepresentation Of Product Security In The E-Commerce Arena, John R. Michener, Steven D. Mohan, James B. Astrachan, David R. Hale

Michigan Telecommunications & Technology Law Review

The modern commercial systems and software industry in the United States have grown up in a snake-oil salesman's paradise. The largest sector of this industry by far is composed of standard commercial systems that are marketed to provide specified functionality (e.g. Internet web server, firewall, router, etc.) Such products are generally provided with a blanket disclaimer stating that the purchaser must evaluate the suitability of the product for use, and that the user assumes all liability for product behavior. In general, users cannot evaluate and cannot be expected to evaluate the security claims of a product. The ability to analyze …

Rescuing The Balance?: An Assessment Of Canada's Proposal To Limit Isp Liability For Online Copyright Infringement, Scott Nesbitt

Canadian Journal of Law and Technology

This paper attempts both to explain the technological and legal imperatives pressing Canada to address the issue of ISP liability in reforms to the Copyright Act and to raise some concerns about the impact of the government’s proposed amendments in this area. The basic elements of copyright law, the impact of digital technology on copyright and the policy arguments surrounding ISP liability are briefly discussed to set the context for judicial treatment of and legislative action on this issue. Next, the paper focuses on the development of American jurisprudence with respect to limitation of ISP liability for third party copyright …

Patent First, Litigate Later! The Scramble For Speculative And Overly Broad Genetic Patents: Implications For Access To Health Care And Biomedical Research, Ikechi Mgbeoji, Byron Allen

Canadian Journal of Law and Technology

This paper will not directly address the ethical considerations of allowing patents on human genetic sequences, although this continues to be a controversial debate in itself. Rather, the aim is to consider the legality of such gene patents and the effects such patents have on biomedical research and health care delivery in definitive terms through an analysis of current developments and research relating to the subject. The operation of current intellectual property regimes regulating such patents will be examined, and amendments to these legal systems will be considered. An emphasis will be placed on identifying practical concerns rather than broad, …

Beyond Convergence And The New Media Decisions: Regulatory Models In Communications Law, Melanie Mortensen

Canadian Journal of Law and Technology

While technological and economic changes have been the most influential factors in stimulating recent policy and regulatory reassessments in Canada with respect to telecommunications and broadcasting regulation, public interest and socio-political concerns should also remain significant in the design of new regulatory and policy responses to convergence and competition. When the CRTC announced that it would refrain from regulating broadcasting in new media for a period of five years, this occasion illustrated the increasing inapplicability of the sector-specific legislation from which the mandate of the CRTC is derived.

The first model addressed is the present sector-specific policy and regulatory treatment …

Fast Track Trade Authority And The Free Trade Agreements: Implications For Copyright Law, Samuel Trosow

Canadian Journal of Law and Technology

In 2002, Congress passed the Bipartisan Trade Promotion Authority Act, which restored the presidential fast-track trade-promotion authority that had lapsed in 1994. Fast-track trade promotion authority is a means by which Congress delegates to the president a portion of its constitutional authority over international trade policy. This paper reviews the development, scope, and application of fast-track trade-promotion authority, evaluates some of the copyright provisions in key Free Trade Agreements, and concludes that the process has been effectively captured by the information and entertainment industries. There are numerous negative consequences that flow from the resulting policy environment. Not only is an …

International Data Transfer Out Of The European Union: The Adequate Level Of Data Protection According To Article 25 Of The European Data Protection Directive, 21 J. Marshall J. Computer & Info. L. 553 (2003), Alexander Zinser

UIC John Marshall Journal of Information Technology & Privacy Law

Article 25 of the European Data Protection Directive provides a set of standards that are to be used by countries in the European Union when personal data processed in the particular member country transfers such information to third countries. This directive dictates that it must be ascertained, before transferring such personal information, that the third country ensures an adequate level of protection. Zinser initially examines the history and scope of Article 25 of the European Data Protection Directive before examining each of the standards and factors contained therein, with regard to the transfer of such information. He offers analysis of …

Cloning, Public Policy And The Constitution, 21 J. Marshall J. Computer & Info. L. 271 (2003), Lowell Ben Krahn

UIC John Marshall Journal of Information Technology & Privacy Law

This comment analyzes the safety and implications of human cloning, including whether cloning is encompassed by the fundamental right to privacy. The article also addresses the legislative attempts at banning cloning, and urges the government to do so.

The Anticybersquatting Consumer Protection Act: An Analysis Of The Decisions From The Courts Of Appeals, 21 J. Marshall J. Computer & Info. L. 355 (2003), Sue Ann Mota

UIC John Marshall Journal of Information Technology & Privacy Law

This article examines the published decisions of the First, Second, Third, Fourth, Sixth, and Ninth Circuit Courts of Appeals in which there have been interpretations of the Anticybersquatting Consumer Protection Act (APCA). The article provides summaries of all cases interpreting the ACPA at the time of writing. These cases include: Sporty’s Farm L.L.C. v. Sportman’s Market, Inc.; Northern Light Technology, Inc. v. Northern Lights Club; Sallen v. Corinthians Licenciamentos LTDA; Shields v. Zuccarini; Virtual Works, Inc. v. Volkswagen of America, Inc.; People for the Ethical Treatment of Animals v. Doughney; Porsche Cars North America, Inc. v. Porsche.net; Harrods Limited v. …

Limiting Exposure For Internet Vendors: Separating The Wheat From The Chaff, 21 J. Marshall J. Computer & Info. L. 207 (2003), Todd V. Mackey

UIC John Marshall Journal of Information Technology & Privacy Law

This article explains how using the Internet to market products may subject a vendor to exposure in unanticipated jurisdictions. The author includes a proposal to minimize those risks by suggesting the use of contracts of adhesion, including mandatory forum selection clauses, and having them executed by the customer in the course of the transaction so that the vendor may insulate itself from those jurisdictional risks.

Congress And The Courts Battle Over The First Amendment: Can The Law Really Protect Children From Pornography On The Internet?, 21 J. Marshall J. Computer & Info. L. 141 (2003), Mitchell P. Goldstein

UIC John Marshall Journal of Information Technology & Privacy Law

Litigation and court action have provided little in the way of providing solutions to anyone dealing with inappropriate content on the Internet. In Miller v. California, 413 U.S. 15 (1973). The court refused to establish a national standard and instead relied on community standards. Because the Internet has no geographic limitations, one cannot determine community standards because the Internet is so far reaching. Goldstein discusses in detail these Congressional enactments: Communications Decency Act of 1996, the Child Online Protection Act, and the Child Pornography Prevention Act of 1996, finding that none of them give children protection from pornography. The challenge …

Trade Secret Reclamation: An Equitable Approach In A Relative World, 21 J. Marshall J. Computer & Info. L. 227 (2003), William L. O'Brien

UIC John Marshall Journal of Information Technology & Privacy Law

The only possible IP protection is a trade secret. However, trade secrets are inadvertently disclosed in investment disclosures or to prospective customers. The article offers a solution to this dilemma by creating emphasis on the continued retention of the secret, even though confidentiality of it could have been dissipating.

Copy Protection Of Cds: The Recording Industry's Latest Attempt At Preventing The Unauthorized Digital Distribution Of Music, 21 J. Marshall J. Computer & Info. L. 241 (2003), Amy K. Jensen

UIC John Marshall Journal of Information Technology & Privacy Law

This comment focuses on the need of the music industry to control the use and digital distribution of music. The author also addresses the privacy issues that arise through the various methods the music industry implements in order to control the unauthorized distribution of digital music via computer technology. The author particularly addresses the privacy issues that arise with the use of undetectable signals that send information about a consumer’s use of that Compact Disc over computer lines, all unbeknownst and unauthorized by the consumer.

Alcatel Usa, Inc. V. Brown: Does Your Boss Own Your Brain?, 21 J. Marshall J. Computer & Info. L. 295 (2003), Jim C. Lai

UIC John Marshall Journal of Information Technology & Privacy Law

Critizing the Alcatel USA, Inc. v. Brown court’s holding that a company owned rights to a software idea that existed entirely in the thoughts of one of it’s former employee’s. Discusses how the court did not take into account that (1) the invention disclosure agreement it secured from the employer was unenforceable, (2) the Solution was not an “invention” as recognized by U.S. intellectual property law, and (3) the development of an automatic decompiler was not within the scope of the company’s business or employee’s work. Arguing while it is reasonable for an employer to require its employees to disclose …