Privacy Law Commons^™

First Amendment Implications For E-Mail Threats: Are There Any Free Speech Protections?, 23 J. Marshall J. Computer & Info. L. 845 (2005), Joshua Azriel

UIC John Marshall Journal of Information Technology & Privacy Law

In this article, Azriel explores how the First Amendment protects or does not provide protections to threatening e-mail communications. The article begins by examining seminal U.S. Supreme Court cases that dealt with threatening speech. The factors that provide the First Amendment protections are described, as well as the particular facts of each case and the Court’s findings. Azriel then looks at the Federal Threat Law and the factors that are enunciated in that legislation with regard to the protections afforded threatening communications, in addition to federal court cases that have interpreted the statute. The article then looks at several cases …

The Failure Of The Rule Of Law In Cyberspace?: Reorienting The Normative Debate On Borders And Territorial Sovereignty, 24 J. Marshall J. Computer & Info. L. 1 (2005), H. Brian Holland

UIC John Marshall Journal of Information Technology & Privacy Law

The purpose of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. The article begins by outlining the Johnson-Post-Goldsmith debate which addressed the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. The debate focused primarily on two areas of disagreement: First, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the …

No Place To Hide, 24 J. Marshall J. Computer & Info. L. 35 (2005), Robert J. O'Harrow Jr.

UIC John Marshall Journal of Information Technology & Privacy Law

Robert O’Harrow, Jr., a reporter on the financial and investigative team of the Washington Post, recipient of the 2003 Carnegie Melon and Cyber Security Reporting Award, and Pulitzer Prize finalist, lectures on topics from his recent book, No Place to Hide. He discusses how data mining began as a way for marketing companies to gain information about consumers and, as technology evolved, developed into a way for the government to monitor its citizens. O’Harrow contends that since the government is using private companies to collect this data, it skirts regulation and accountability for privacy infringements. After discussing the problems concerning …

Do We Really Have No Place To Hide?, 24 J. Marshall J. Computer & Info. L. 57 (2005), Matthew Hector

UIC John Marshall Journal of Information Technology & Privacy Law

This article is a book review of No Place to Hide, by Robert O’Harrow. The author begins his analysis of No Place to Hide by addressing concerns raised by O’Harrow regarding the balance between the private data aggregators like ChoicePoint and Acxiom and government investigators in reference to the goal of informational privacy policies. The author then goes into a detailed discussion of O’Harrow’s examination of the reasons for drafting the U.S. Patriot Act. Finally, the author discusses the central issue raised in No Place to Hide, and that is the unlimited ability to access certain information on the Internet …

2005 John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Petitioner, 24 J. Marshall J. Computer & Info. L. 97 (2005), Allyson Bennett, Christina Dallen, David Kestenbaum

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

2005 John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For The Respondent, 24 J. Marshall J. Computer & Info. L. 133 (2005), Cherish M. Keller, Elaine Wyder-Harshman

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

Copyright & Privacy - Through The Legislative Lens, 4 J. Marshall Rev. Intell. Prop. L. 266 (2005), Marybeth Peters

UIC Review of Intellectual Property Law

The Honorable Marybeth Peters, who has served since 1994 as the Register of Copyrights for the United States Copyright Office of the Library of Congress, presented a post-election report on the legislative agenda in Washington, D.C. regarding rejected, pending and future amendments to the copyright law of the United States. Register Peters also discussed the current policy role of the United States Copyright Office and several court actions that contest the constitutionality of various provisions of the copyright law.

Copyright & Privacy - Through The Technology Lens, 4 J. Marshall Rev. Intell. Prop. L. 242 (2005), Michael A. Geist, Doris E. Long, Leslie Ann Reis, David E. Sorkin, Fred Von Lohmann

UIC Review of Intellectual Property Law

How is new technology impacting on the more general question of privacy in cyberspace? Is the original notion of an expectation of anonymity on the internet still viable? Can technology pierce through the expectation of privacy even without judicial interference? Do individuals need protection from such technology? Is there technology available to protect the individual? Should these technological tools be regulated? Should the law differentiate between various types of alleged “illegal” behavior; e.g., IP infringement, defamation, possession of pornography and terrorism? Are there international standards that can assist in regulating the intersection between technology and privacy in cyberspace?

Copyright & Privacy - Through The Political Lens, 4 J. Marshall Rev. Intell. Prop. L. 306 (2005), William W. Fisher Iii, Hugh C. Hansen, Christopher Jay Hoofnagle, Howard P. Knopf, Declan Mccullagh, Ralph Oman, Matthew J. Oppenheim

UIC Review of Intellectual Property Law

Veteran beltway players discuss the politics of P2P technology and Privacy. How far can or should Congress go? Can the United States export its values or its laws in this area? Are content owners in a losing Luddite struggle? What is the role of litigators, lobbyists and legislators in this war?

Copyright & Privacy - Through The Privacy Lens, 4 J. Marshall Rev. Intell. Prop. L. 273 (2005), Julie E. Cohen, David E. Sorkin, Peter P. Swire

UIC Review of Intellectual Property Law

What legal tools do privacy advocates have available to defend an individual’s right to privacy? How far does this right go? How should these rights be defended—or if necessary—curtailed? What is the role of Government, of the practicing bar and of academics?

Copyright & Privacy - Through The Wide-Angle Lens, 4 J. Marshall Rev. Intell. Prop. L. 285 (2005), William W. Fisher Iii, Howard P. Knopf, Fred Von Lohmann, William B.T. Mock, Marybeth Peters, R. Anthony Reese

UIC Review of Intellectual Property Law

Some have proposed “alternative compensation schemes” as a means of compensating copyright owners and creators for P2P activity while avoiding litigation. Some have proposed a streamlined dispute resolution system that would allow for enforcement in a manner analogous to the UDRP model. Others question whether private copying should necessarily be viewed as illegal and whether any alternative compensation scheme is viable. With all of these proposals, the question remains as to whether “alternative compensation” is really alternative.

New Federal And Provincial Personal Information Protection Legislation And Its Impact On Physicians And Public Hospitals, Evguania Prokopieva

Canadian Journal of Law and Technology

The focus of this article is to examine the implications of the new federal and Ontario personal data protection legislation for physicians and public hospitals. This article also inquires into whether the new legislation will contribute to the protection of patient privacy. By ‘‘physician’’ I mean a doctor in a broad sense – i.e., ‘‘a person who has been educated, trained, and licensed to practice the art and science of medicine’’. This will include family doctors, paediatricians, psychiatrists, surgeons, and other medical doctors covered by the Regulated Health Professions Act. By the term ‘‘public hospitals’’ I will refer to not-for-profit …

"Tpms": A Perfect Storm For Consumers: Replies To Professor Geist, Barry Sookman

Canadian Journal of Law and Technology

This article has its origins in an article written by Professor Michael Geist and published in the Toronto Star entitled ‘‘‘TPMs’: A perfect storm for consumers’’. Following the publication of the article, John Gregory made a posting to the e-commerce listserv he moderates asking if anyone had any comments to the article. I responded on February 13, 2005 with a reply to John’s request. Professor Geist replied to my comments on February 17, 2005. On March 9, 2005 I posted a further reply to Professor Geist. The article set out below is based substantially on my two postings to John …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

Leveraging Knowledge Assets: Can Law Reform Help?, Margaret Ann Wilkinson, Mark Perry

Canadian Journal of Law and Technology

This paper asks whether there is a need for law-makers to aid in the efficient transition to a new knowledge-based economic and social environment through the use of intellectual property devices. The use of such devices was effective in assisting with the transition to an industrial society that, combined with developments in commercial law and secured transactions, further fuelled economic growth in Canada. Can these disparate areas of law be brought together to provide opportunities for the growth of knowledge-based business? The Law Commission of Canada instigated a two-part investigation into these questions. The investigation culminated in the Commission's report …

Whazup With The Whois?, Sheldon Burshtein

Canadian Journal of Law and Technology

The WHOIS is a database directory of domain names and relevant contact information maintained by each top-level domain (TLD) registry, which lists all relevant registrant contact information for each domain name registration. Through its contracts, the Internet Corporation for Assigned Names and Numbers (ICANN) requires registries and registrars to collect and display technical information and contact details for all registrants. The WHOIS is an important component of the domain name system (DNS). The WHOIS is used for a wide variety of purposes by registries, registrars, registrants, law enforcement authorities, consumers, and the general public. The WHOIS may enable identification of …

A Review Of Canadian Radiocommunications Law Around "Jammers", Tyson Macauley

Canadian Journal of Law and Technology

This comment argues that the Radiocommunications Act should be amended to relax the prohibition on specific types of ‘‘smart’’ jamming in the Industry Science Medicine (ISM) bands. Specifically, the legislation requires increased flexibility and granularity to accom- modate new wireless technologies in the ISM bands — particularly wireless LAN (WLAN) technologies like IEEEE 802.11b/IEEE 802.11g (WiFi), and IEEE 802.11a (henceforth collectively know as ‘‘ISM radios’’).

The availability of cheap, mass-produced ISM radios hardware and the proliferation of applications using the ISM spectrum bands of 2.4Ghz and 5Ghz present a variety of security and privacy concerns that cannot be effectively addressed …

Fundamentals Of Information Technology By Sunny Handa (Markham: Lexisnexis Canada Inc., 2004), Barbara Darby

Canadian Journal of Law and Technology

In the early 1990s, I purchased my first stereo with a CD player. I found myself trapped in a conversation with someone who tried to convince me that it was utter folly not to buy a turntable, because CD technology simply couldn’t replicate the ‘‘warmth’’ of vinyl. Had I only Handa’s book to hand, I could have provided a straight- forward and understandable explanation for why my records were well enough left in my parents’ basement; although ‘‘digitization . . . fails to record all characteristics of analog data, even at the highest finite sampling rate . . . Complete …

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Recalibrating Copyright Law?: A Comment On The Supreme Court Of Canada's Decision In Cch Canadian Limited Et Al. V. Law Society Of Upper Canada, Teresa Scassa

Canadian Journal of Law and Technology

The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada marks a second recent decision by the Court that has major implications for the development of copyright law in Canada. In Théberge v. Galerie D’Art du Petit Champlain, the majority of the Court provided a significant articulation of the balance to be struck between the rights of creators and the rights of users of copyright-protected works. In doing so, it embraced an approach to copyright typical of U.S. copyright law in its heyday. The unanimous Court in CCH Canadian makes it …

Ef Cultural Travel V. Explorica: The Protection Of Confidential Commercial Information In The American And Canadian Contexts, Suzanne White

Canadian Journal of Law and Technology

Commercial information, once relegated to paper files stored in cabinets, is now more likely to be in digital form, allowing a myriad of people to access its contents. These electronic storehouses can subsequently be stored on the Internet, providing a handy but some- what risky means of archiving valuable information. The United States Court of Appeals (1st Circ.) judgment EF Cultural Travel v. Explorica1 is a clear indicator of the way in which the advent of the Internet has completely changed the constructive meaning of the traditional ‘‘office file’’. This paper attempts to provide an under- standing of the scope …

Electronic Commerce - A Practitioner's Guide Edited By Alan M. Gahtan, Martin P.J. Kratz, And J. Fraser Mann (Toronto: Thomson Carwell, 2003), Harmonie Roesch-West

Canadian Journal of Law and Technology

At a time when there seems to be no clear consensus on how to regulate electronic commerce comes a much-needed discussion of the many salient factors impacting the matter in Electronic Commerce: A Practitioner’s Guide. The collaborative effort includes works from several authors, compiled by Alan M. Gahtan, Martin P.J. Kratz, and J. Fraser Mann. This guide is an excellent first step in clarifying the issues and summarizing the precedents and relevant statute law to date. Although the target is an audience of law professionals, other e-commerce stakeholders, including business pro- fessionals, will find this collection useful.

Of Neighbours And Netizens, Or, Duty Of Care In The Tech Age: A Comment On Cooper V. Hobart, Robert J. Currie

Canadian Journal of Law and Technology

The focal point of this comment will be the recent judgment of the Supreme Court of Canada in Cooper v. Hobart, which appears to have made some significant changes to the elements of ‘‘duty of care’’, the foundational negligence concept. The Court framed its decision as refining duty of care analysis in order to properly deal with ‘‘novel claims’’ (i.e., those for which there is not an established or analogous duty of care in the existing case law). Given that the growth of elec- tronic commerce and Internet usage continues to spawn ‘‘novel’’ legal issues, Cooper is an appropriate starting …

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …