Privacy Law Commons^™

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

The (Possibly) Injured Consumer: Standing In Data Breach Litigation, Lauren M. Lozada

St. John's Law Review

(Excerpt)

This Note will address the question of what factors a prospective plaintiff must display to “push [a] threatened injury of future identity theft beyond the speculative to the sufficiently imminent.” Part I will delve into relevant statistics to identify the characteristics of a data breach that most often lead to eventual identity theft. Part II will explore recent data breach standing cases and analyze the factual differences and legal perspectives that have led to disparate results among the federal circuits. Lastly, Part III will recommend a method for evaluating future data breach standing issues.

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Competition, Privacy, And Big Data, Stanley M. Besen

Catholic University Journal of Law and Technology

This article analyzes the competition policy and privacy issues that are raised by large disparities in the amounts of consumer data that are held by different firms. First, it explains how competition authorities could take data acquisition into account in evaluating the effects of mergers and examines conditions under which those authorities might mandate data sharing among competitors. Next, it considers how privacy issues might be treated in analyzing whether data sharing should be permitted or mandated. Finally, it examines possible conflicts between policies that address competition and those that deal with privacy.

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

If The Law Can Allow Takebacks, Shouldn't It Also Allow Hackbacks?, Adam Rodrigues

Marquette Intellectual Property Law Review

None.

Retrievable Images On Social Media Platforms: A Call For A New Privacy Tort, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The recognition of a right of privacy in Warren and Brandeis’s famous article has long been celebrated and lamented. It is celebrated because privacy is a central feature of individual well-being that deserves legal protection. It is lamented because the protection they contemplated, and that is actually provided by the law, is quite modest. Modern technology, especially social media platforms, has only raised the stakes. Anytime one goes out in public, one risks having one’s image captured and shared worldwide, leaving us with little or no control over how we are perceived by others.

This Article argues for the recognition …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

The Internet Never Forgets: A Federal Solution To The Dissemination Of Nonconsensual Pornography, Alexis Santiago

Seattle University Law Review

As technology evolves, new outlets for interpersonal conflict and crime evolve with it. The law is notorious for its inability to keep pace with this evolution. This Comment focuses on one area that the law urgently needs to regulate—the dissemination of “revenge porn,” otherwise known as nonconsensual pornography. Currently, no federal law exists in the U.S. that criminalizes the dissemination of nonconsensual pornography. Most U.S. states have criminalized the offense, but with vastly different degrees of severity, resulting in legal inconsistencies and jurisdictional conflicts. This Comment proposes a federal solution to the dissemination of nonconsensual pornography that carefully balances the …

In A World Of "Fake News," What's A Social Media Platform To Do?, Evelyn Aswad

Faculty Articles

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …

Losing The Freedom To Be Human, Evelyn Aswad

Faculty Articles

In 2019, Apple’s CEO warned that contemporary business models, which are based on harvesting our personal data and monetizing everything we do online, violate our privacy and will eventually cause us “to lose the freedom to be human.” Others have taken this privacy concern a step further by questioning whether these business models undermine mental autonomy, i.e., the ability to think and form opinions. The burgeoning chorus of concerns has triggered a variety of high-profile calls to explore whether international human rights law protects against intrusions on the inner sanctum of one’s mind, particularly with respect to the business models …

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

Politics Of Adversarial Machine Learning, Kendra Albert, Jonathon Penney, Bruce Schneier, Ram Shankar Siva Kumar

Articles, Book Chapters, & Popular Press

In addition to their security properties, adversarial machine-learning attacks and defenses have political dimensions. They enable or foreclose certain options for both the subjects of the machine learning systems and for those who deploy them, creating risks for civil liberties and human rights. In this paper, we draw on insights from science and technology studies, anthropology, and human rights literature, to inform how defenses against adversarial attacks can be used to suppress dissent and limit attempts to investigate machine learning systems. To make this concrete, we use real-world examples of how attacks such as perturbation, model inversion, or membership inference …

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members …

The Survival Of Critical Infrastructure: How Do We Stop Ransomware Attacks On Hospitals?, Helena Roland

Catholic University Journal of Law and Technology

Our nation’s infrastructure is under an emerging new threat: ransomware attacks. These attacks can cause anything from individual laptops, to entire cities to shut down for a period of time until the victim pays a ransom to the attacker. Unfortunately, these attacks are on the rise and the attackers have a new target: hospitals. Ransomware attacks on hospitals can temporarily shut down operating room technology and limit physician access to patient files, ultimately threatening the safety of hospital patients and the surrounding community. This paper examines how the threat of ransomware attacks on hospitals is on the rise and what …

Are Data Privacy Laws Trade Barriers?, Margot Kaminski

Publications

No abstract provided.

Internet Of Things For Sustainability: Perspectives In Privacy, Cybersecurity, And Future Trends, Abdul Salam

Faculty Publications

In the sustainability IoT, the cybersecurity risks to things, sensors, and monitoring systems are distinct from the conventional networking systems in many aspects. The interaction of sustainability IoT with the physical world phenomena (e.g., weather, climate, water, and oceans) is mostly not found in the modern information technology systems. Accordingly, actuation, the ability of these devices to make changes in real world based on sensing and monitoring, requires special consideration in terms of privacy and security. Moreover, the energy efficiency, safety, power, performance requirements of these device distinguish them from conventional computers systems. In this chapter, the cybersecurity approaches towards …

Welcome To Cordell Perspectives, Neil M. Richards, Jonathan W. Heusel

Scholarship@WashULaw

The world around us is changing. Let’s talk about it together. Introducing a series of articles and opinions by the world’s leading experts concerning COVID-19 as it relates to precision medicine and data privacy: Welcome to Cordell Perspectives.

Data Imperialism: The Gdpr's Disastrous Impact On Africa's E-Commerce Markets, Cara Mannion

Vanderbilt Journal of Transnational Law

The European Union (EU) recently passed the General Data Protection Regulation--a sweeping regulatory framework that sets a new global standard for the collection, storage, and use of personal data. To ensure far-reaching compliance with the GDPR, the EU has adopted a strict take-it-or-leave-it approach--countries that wish to engage with digital users in the EU must either comply with the GDPR's expansive data obligations or risk losing access to the world's largest trading block.

This presents significant obstacles for several African nations. Notably, no African country currently has domestic laws that comply with the GDPR. Even if they did, several African …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes

Publications

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

A Dangerous Inheritance: A Child’S Digital Identity, Kate Hamming

Seattle University Law Review

This Comment begins with one family’s story of its experience with social media that many others can relate to in today’s ever-growing world of technology and the Internet. Technology has made it possible for a person’s online presence to grow exponentially through continuous sharing by other Internet users. This ability to communicate and share information amongst family, friends, and strangers all over the world, while beneficial in some regard, comes with its privacy downfalls. The risks to privacy are elevated when children’s information is being revealed, which often stems from a child’s own parents conduct online. Parents all over the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Closed Adoption: An Illusory Promise To Birth Parents And The Changing Landscape Of Sealed Adoption Records, Bryn Baffer

Catholic University Journal of Law and Technology

Imagine spitting into a tube and mailing your DNA off only to discover that you had a sibling who had been adopted by another family or that a parent’s affair had resulted in a half-sibling. For many individuals, these family secrets have been exposed due to direct-to-consumer DNA testing companies, such as 23andMe.

By the 1950s, most states had enacted statutes that sealed adoption record files in order to preserve the privacy of the birth parents, adoptees, and adoptive families. While some states have moved toward granting adoptees access to their adoption records, most states still have some type of …

Cyber Insurance Today: Saving It Before It Needs Saving, Angela Nieves

Catholic University Journal of Law and Technology

Cyber insurance, which covers a company’s losses and costs stemming from a cyberattack, represents a nearly $5 billion global market. But have stakeholders shaped a sustainable model? This article analyzes contrasting claims about the viability of cyber insurance. It proposes measures to ensure the survival of the cyber insurance market, which should be immediately addressed given the current state of the world and the fact that even pre-COVID-19, businesses worldwide stood to lose over $5.2 trillion over the next five years due to cybercrimes. Unless action is taken to mitigate the fallout from cyber events, the cyber insurance market will …

Cyber Mobs, Disinformation, And Death Videos: The Internet As It Is (And As It Should Be), Danielle K. Citron

Faculty Scholarship

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin

Articles by Maurer Faculty

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially …

“Hey Alexa, Do Consumers Really Want More Data Privacy?”: An Analysis Of The Negative Effects Of The General Data Protection Regulation, Katherine M. Wilcox

Brooklyn Law Review

Recent news articles discuss the flooding of email inboxes with lengthy terms and condition updates, viral videos of Mark Zuckerberg’s public Cambridge Analytica hearing before Congress, and the phenomenon of internet advertisements appearing for items that consumers merely searched for on Google a day prior. Effective as of May 25, 2018, the European Union’s General Data Protection Regulation (GDPR) established a framework that sets legal standards targeted at businesses and other data collectors to dramatically increase data privacy protections for citizens of the EU. Consumers, however, do not seem to appreciate these increased protections, as they rarely read the updated …

Censorship, Free Speech & Facebook: Applying The First Amendment To Social Media Platforms Via The Public Function Exception, Matthew P. Hooker

Washington Journal of Law, Technology & Arts

Society has a love-hate relationship with social media. Thanks to social media platforms, the world is more connected than ever before. But with the ever-growing dominance of social media there have come a mass of challenges. What is okay to post? What isn't? And who or what should be regulating those standards? Platforms are now constantly criticized for their content regulation policies, sometimes because they are viewed as too harsh and other times because they are characterized as too lax. And naturally, the First Amendment quickly enters the conversation. Should social media platforms be subject to the First Amendment? Can—or …

Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino

Notre Dame Law Review

This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects, …