Privacy Law Commons^™

The Regulation Of Personal Health Record Systems In Canada, James Williams, Jens H. Weber-Jahnke

Canadian Journal of Law and Technology

This paper analyzes the regulatory regime for PHR systems in Canada. The first part of the paper consists of an introduction to some of the major issues associ- ated with these applications, with a focus on privacy, security, data quality, and interoperability. Following this preliminary discussion, the bulk of the analysis deals with the legal instruments that apply to PHR products developed by private sector organizations. Due to space constraints, the paper concentrates on legislative and regulatory instruments, deferring a discussion of the possible impacts of tort, product liability, and contract law on PHR systems. Despite this omission, it is …

Canada's Digital Economy Strategy: Toward An Openness Framework, Michael Geist

Canadian Journal of Law and Technology

This essay is an expanded version of my submission to the digital economy consultation. It opens with general issues such as digital policy leadership, cost issues, and emphasizes the need for a principle-based strategy that embraces the benefits associated with “open,” whether open access, open spectrum or open data. It then provides specific recommendations on a wide range of issues including tele- communications policy, privacy, and copyright.

Canada's Current Position With Respect To Sound Marks Registration: A Need For Change?, Marie-Jeanne Provost

Canadian Journal of Law and Technology

This paper analyses and criticizes Canada’s position on sound marks registration in order to recommend the ways in which Canadian policy-makers could further act in order to advance this area of law. The first part of this paper exposes the fundamental concepts of trade-marks as they are necessary to the comprehension of the problems surrounding the registration of sound marks. In the second part, legal considerations associated with the registration of sound marks are discussed. More specifically, the visual requirement, the issue of “use,” the concept of distinctiveness and the question of overlap with copyright are assessed. In the third …

Canadian Personal Data Protection Legislation And Electronic Health Records: Transfers Of Personal Health Information In It Outsourcing Agreements, Dara Lambie

Canadian Journal of Law and Technology

Personal data protection and privacy of personal health information in the electronic era is a broad topic that includes consent, security measures and access considerations. The focus of this article is on one component of the larger picture: data transfers of personal health information that occur in the context of informa- tion technology (“IT”) outsourcing. If the societal good envisioned by an inter-jurisdictional EHR is to be fully realized, then the necessity of outsourcing is a reality that must be addressed.

Inadequate: The Apec Privacy Framework & Article 25 Of The European Data Protection Directive, Stuart Hargreaves

Canadian Journal of Law and Technology

The EU and APEC approaches represent two different ways of thinking about the purpose of privacy rights in personal information (a.k.a. “informational privacy” or “data privacy”). The European approach sees integrity and control over information about oneself as inherent to human dignity; informational privacy is treated as a fundamental right subject only to limited restrictions. In contrast, the approach evinced by APEC is a market-oriented cost/benefit calculus; control over personal information is seen as a beneficial policy goal when it can increase consumer confi- dence and promote economic growth — the implication being that it can also more easily give …

Book Review - Intellectual Property Rights And The Life Science Industries: Past, Present, And Future, Chidi Oguamanam

Canadian Journal of Law and Technology

Our so-called post-industrial society is one whose axial feature is the interac- tion between computer-driven digital and life science-driven bio-technologies. The primary legal mechanism that undergirds the allocation of rights in this new infor- mation-centred epoch is intellectual property. Perhaps only a few industrial sectors have benefitted more from the dynamics of that interaction than the pharmaceutical industry. Perhaps also, only a few industrial sectors have fully appreciated and opti- mally exploited the power of intellectual property than that sector. How did that happen? How has it continued to unfold, and what does the future hold for the continued co-evolution …

La Cyberintimidation: Analyse Juridique, Karen D. Levin

Canadian Journal of Law and Technology

Dans ce mémoire va être traitée une analyse juridique de la cyberintimidation. Dans une première partie, nous tenterons de définir le terme « cyberintimidation » et les enjeux qui s’y rattachent. En deuxième lieu, nous examinerons la motivation qui mène à la cyberintimidation, ainsi que la manière dans laquelle l’acte se produit. Troisièmement, nous évaluerons les provisions du droit criminel fédéral, des droits de la personne, et du droit des délits civils afin de déterminer l’efficacité de notre système juridique à détourner la cyberintimidation. Finalement, nous trancherons la question de réforme qui se propose au Canada, la comparant aux réformes …

Undermined Norms: The Corrosive Effect Of Information Processing Technology On Informational Privacy, Richard Warner

All Faculty Scholarship

Informational privacy is a matter of control; it consists in the ability to control when one’s personal information is collected, how it is used, and to whom it is distributed. The degree of control we once enjoyed has vanished. Advances in information processing technology now give others considerable power to determine when personal information is collected, how it is used, and to it is whom distributed. Privacy advocates sound the alarm in regard to both the governmental and private sectors. I focus exclusively on the later. Relying on the extensive privacy advocate literature, I assume we should try to regain …

A New Approach To Data Security Breaches, Gideon Emcee Christian

Canadian Journal of Law and Technology

This article examines the problems associated with data security breaches from two different, but not mutually exclusive, perspectives. The first part of the article examines the need for notification in the event of a data security breach and proposes an amendment of the Personal Information Protection and Electronic Document Act (PIPEDA) to create a legal, or statutory, obligation in Canada to compel disclosure or notification of data security breaches. My recommendations are based on the examination of legislation from other legal jurisdictions, highlighting, where necessary, the shortcomings of the legislation, which ought to be taken into consideration in amending PIPEDA …

There Is A Time To Keep Silent And A Time To Speak, The Hard Part Is Knowing Which Is Which: Striking The Balance Between Privacy Protection And The Flow Of Health Care Information, Daniel J. Gilman, James C. Cooper

Michigan Telecommunications & Technology Law Review

Health information technology (HIT) has become a signal element of federal health policy, especially as the recently enacted American Recovery and Reinvestment Act of 2009 (Recovery Act or ARRA) comprises numerous provisions related to HIT and commits tens of billions of dollars to its development and adoption. These provisions charge various agencies of the federal government with both general and specific HIT-related implementation tasks including, inter alia, providing funding for HIT in various contexts: the implementation of interoperable HIT, HIT-related infrastructure, and HIT-related training and research. The Recovery Act also contains various regulatory provisions pertaining to HIT. Provisions of the …

Cyberwar Policy, 27 J. Marshall J. Computer & Info. L. 303 (2010), Matthew Borton, Samuel Liles, Sydney Liles

UIC John Marshall Journal of Information Technology & Privacy Law

Cyberwarfare is a very real threat to the security of the nation. Yet there is confusion and disagreement as to which government body is most appropriate to assume the cyberwar mission. The Strategy to Secure Cyberspace treats the threat primarily as a criminal issue, and assigns responsibility to the Department of Homeland Security. The National Defense Strategy implies that cyberwarfare is a military issue. Both documents may be correct, depending on the case. The cyberspace terrain transcends boundaries, quickly blurring the line between civil or criminal action and an act of war, leaving the government with the issue of assigning …

Law School & The Web Of Group Affiliation: Socializing, Socialization, And Social Network Site Use Among Law Students, 27 J. Marshall J. Computer & Info. L. 325 (2010), Eric M. Fink

UIC John Marshall Journal of Information Technology & Privacy Law

Online social network sites (“SNS”) have emerged as a significant socio-technical phenomenon in the past several years. Scholars from various disciplines have examined these sites to develop a better understanding of their social significance and implications from a variety of perspectives. Within the burgeoning field of SNS studies, one strand of work focuses on the place of SNSs in students’ educational experiences and the potential pedagogical applications of SNSs. However, the SNS phenomenon generally, and its educational/pedagogical significance in particular, have received scant attention from legal scholars. This article examines the place of SNSs within the contemporary law school experience, …

Firearm Transaction Disclosure In The Digital Age: Should The Government Know What Is In Your Home?, 27 J. Marshall J. Computer & Info. L. 497 (2010), Elaine Vullmahn

UIC John Marshall Journal of Information Technology & Privacy Law

This comment examines the primary arguments for continuing to prohibit the federal government from establishing a federal firearm registry. The Background section of this comment surveys the development of laws restricting firearm sales and requiring federal firearm licensed dealers to maintain pertinent records. This section also describes how, if enacted, the Blair Holt’s Firearm Licensing and Registration Act of 2009, known as H.R. 45, would, through the creation of federal firearm registry, expose electronic records of private citizens’ firearm purchases and ownership to possible government abuse. The Analysis section examines why H.R. 45 is not the correct means for achieving …

The Cathedral And The Bizarre: An Examination Of The "Viral" Aspects Of The Gpl, 27 J. Marshall J. Computer & Info. L. 349 (2010), Michael F. Morgan

UIC John Marshall Journal of Information Technology & Privacy Law

While there is a growing body of literature dealing with the General Public License (“GPL”), the potential viral effects of the GPL do not appear to have been analyzed in a detailed technical manner. This paper will attempt to demonstrate that a proper legal analysis of the viral effects of the GPL is dependent on a detailed technical understanding of the specific mechanisms used for each type of program-to-program interaction. Once these technical mechanisms are properly understood it will then be possible to identify the applicable copyright law needed to assess the viral effects of the GPL.

How Safe Is This Shore? - Data Protection And Bpos In India, 27 J. Marshall J. Computer & Info. L. 539 (2010), Kritika Bharadwaj

UIC John Marshall Journal of Information Technology & Privacy Law

India has one of the fastest growing demographics of personal computer and Internet usage, following the U.S. and the U.K. In the light of this progress, there is no doubt that India has benefited from the worldwide process of outsourcing. On the same note, the service offered by India has rendered her indispensible to countries around the world, including the U.S. and the U.K. However, where convenience, speed, and accessibility are taken for granted in this digital era, this paradigm shift has consequently resulted in changes in its management and control, safeguard measures, and a surge of unprecedented threats and …

Cyber Fatwās And Classical Islamic Jurisprudence, 27 J. Marshall J. Computer & Info. L. 577 (2010), Derek John Illar

UIC John Marshall Journal of Information Technology & Privacy Law

The first section of this paper will explain what fatwâs are, why they are important, and what is the relationship between fatwâs and the Islamic judiciary. This section will also address who can issue such opinions and how scholars reach their conclusions. In the second part of this paper, I will explore the recent emergence of cyber fatwâs. This section specifically will focus on how Muslims have used this medium and how fatwâs have manifested themselves therein. The third portion of this paper will identity the problems that cyber fatwâs create and why they fail to comport with particular tenets …

An Evolutionary Study Of Cloud Computing Services Privacy Terms, 27 J. Marshall J. Computer & Info. L. 593 (2010), Konstantinos K. Stylianou

UIC John Marshall Journal of Information Technology & Privacy Law

This paper examines the evolution of a number of cloud computing services’ terms of use with the aim to discern whether they offer less or more (or equal) privacy safeguards. To better highlight the changes cloud computing has brought about, I focus on those privacy terms that relate to the special modus operandi of cloud services. This paper proceeds in three parts. Part I identifies the special ways by which cloud computing challenges privacy. Part II discusses a series of privacy terms commonly found in the sampled cloud computing services and follows their evolution by comparing previous versions where available. …

Increasing Access To Startup Financing Through Intellectual Property Securitization, 27 J. Marshall J. Computer & Info. L. 613 (2010), Kyle Tondo-Kramer

UIC John Marshall Journal of Information Technology & Privacy Law

This paper will discuss how a private company running a single, nationwide database for filing financing agreements can ease the burden on creditors and pave the way for more creditors to enter this market. Part two offers a brief overview of how intellectual property securitization works and some of the impediments to using this type of securitization. Part three proposes a possible solution to the problem creditors face regarding the filing of a financing statement when attempting to securitize intellectual property, and provides an in depth analysis as to why the suggestion that a private company runs a single, nationwide …

300 Years Of Copyright Law? A Not So Modest Proposal For Reform, 28 J. Marshall J. Computer & Info. L. 1 (2010), James Gh Griffin

UIC John Marshall Journal of Information Technology & Privacy Law

2010 sees the three hundredth anniversary of the U.K.'s Statute of Anne 1710. This paper suggests that with the increased ability of content recipients to re-use works, there is a need to readdress the concerns of stakeholders, namely authors, publishers and content recipients. The paper sets out in detail how this should be achieved. To do so, it utilises the notion of creativity as the benchmark by which to balance the interests of stakeholders. This has been used in early eighteenth century case law in the U.K., and there are also other historical and theoretical justifications. The paper then proceeds …

The Olympic Meddle: The International Olympic Committee's Intrusion Of Athletes' Privacy Through The Discriminatory Practice Of Gender Verification Testing, 28 J. Marshall J. Computer & Info. L. 49 (2010), Raheel Saleem

UIC John Marshall Journal of Information Technology & Privacy Law

The IOC and the IAAF act as governing bodies for athletes and, therefore, are innately responsible for their actions. However, the gender verification rule exemplifies that irresponsible actions by these governing agencies adversely effects its athletes. The gender verification rule empowers both the IOC and the IAAF to make life-changing decisions without any restriction, leaving athletes susceptible to the unfettered power and abuse of the rule. The legal foundation established by the international human rights declarations support the argument that gender verification testing must be abolished because of its embedded discrimination and intrusive nature. An application of the ICCPR provides …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 28 J. Marshall J. Computer & Info. L. 81 (2010), Erin Murphy-Hillstrom, Whitney Hutchinson, Efthymios Katsarelis, Amber Lynn Wagner, Panagiota Kelali

UIC John Marshall Journal of Information Technology & Privacy Law

Petitioner, Aaron Murphy, appeals to the Marshall Supreme Court from a decision affirming the grant of summary judgment in favor of Respondent, MarshCODE, on his claims of defamation, false light invasion of privacy, and breach of contract. Thus, there are now three issues before the Marshall Supreme Court. The first two issues concern whether an individual can maintain an action of defamation and false light invasion of privacy when the false statement arose because of a computer malfunction. The last issue concerns whether the unilateral modification of a privacy agreement constitutes a breach of contract when assent to the modification …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Petitioner, 28 J. Marshall J. Computer & Info. L. 119 (2010), Kelly Foss, Vince Lombardozzi, Jared Palmer

UIC John Marshall Journal of Information Technology & Privacy Law

The circuit court erred when it granted summary judgment in favor of MarshCODE because Mr. Murphy has demonstrated facts to support the elements of the (1) defamation, (2) false light invasion of privacy, and (3) breach of contract claims. First, Mr. Murphy has provided facts to support the defamation claim. MarshCODE made a false and defamatory statement about Mr. Murphy when it told Ms. Who that he was her father. Because this matter concerns Mr. Murphy's private life, a negligence standard applies rather than the First Amendment's actual malice standard. Mr. Murphy has demonstrated that MarshCODE acted either negligently or …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Respondent, 28 J. Marshall J. Computer & Info. L. 151 (2010), Kimberly Hodgman, Jody Rodenberg, Erin Tyler

UIC John Marshall Journal of Information Technology & Privacy Law

The First District Court of Appeals properly affirmed summary judgment on behalf of MarshCODE because Appellant failed to raise a genuine issue of material fact on his defamation claim. First, MarshCODE's accidental disclosure of information, which implied that Appellant participated in premarital sex or had a homosexual child, was not defamatory because an average person would not lower his estimation or be deterred from associating with Appellant based on such a statement. Second, no publication was made because MarshCODE did not act with negligence and was unaware of the program malfunction that resulted in the release of the information. Third, …

Protecting Consumers From Spyware: A Proposed Consumer Digital Trespass Act, 28 J. Marshall J. Computer & Info. L. 185 (2010), Richard G. Kunkel

UIC John Marshall Journal of Information Technology & Privacy Law

“Spyware” is a broad term used to describe software that resides on a user’s computer and monitors the user’s online behavior. Though spyware may be helpful or benign, it can also be used for malicious purposes, commonly classified as “malware”. Consumers, who lack sophistication to avoid unintentionally downloading spyware, are especially vulnerable to the threat of malware. In lieu of this threat, it is important to understand the nature and scope of spyware problems affecting consumers. The paper will discuss how common law tort theories of trespass and trespass to chattel are difficult to apply to spyware, and how a …

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.

Photo Enforcement Programs: Are They Permissible Under The United States Constitution?, 43 J. Marshall L. Rev. 463 (2010), Paul Mcnaughton

UIC Law Review

No abstract provided.

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." …

Google Analytics: Analyzing The Latest Wave Of Legal Concerns For Google In The U.S. And The E.U., 7 Buff. Intell. Prop. L.J. 135 (2010), Raizel Liebler, Keidra Chaney

UIC Law Open Access Faculty Scholarship

The next wave of concern regarding Google involves web analytics. Web analytics is the measurement, collection, analysis, and reporting of Internet data for the purposes of understanding and optimizing web usage. The concerns of web analytics use touches on issues of online user privacy, government use of personal information, and information on website user activity. While Google Analytics is not the sole web analytics product on the market, it is widely used by corporate, non-profit, and government organizations. The product has been reported to have a 59% market share among web analytics vendors in a 2008 study.

Web analytics technology …

Groundwork For Assessing The Legal Risks Of Cyberjustice, François Senécal, Karim Benyekhlef

Canadian Journal of Law and Technology

It is clear that the use of information technology is quickly becoming a necessity for the justice system. In civil cases, delays and costs are causing individuals to abandon the courts, and cases that make it to trial are of ever-increasing complexity. Moreover, public security is weakened by the inefficient and cumbersome conditions by which criminal justice information circulates among the various stakeholders, such as the police, prosecutors, the courts, penitentiaries and parole boards, to name only a few. It becomes apparent that information technology has much to offer individuals involved in court cases and the justice system as a …

Strong Medicine: Patents, Market, And Policy Challenges For Managing Neglected Diseases And Affordable Prescription Drugs, Taiwo A. Oriola

Canadian Journal of Law and Technology

The article is divided into six parts. Part one deals with the introduction, part two discusses the evolution of modern medicine and the socio-economic dynamics that shape the current prescription drug economics, part three discusses the pharmaceutical costs conundrum, part four analyses neglected diseases and the scale of the problem, part five discusses the role of patents on the pharmaceuticals costs trajectory and reviews literature on possible alternatives to promoting incentives for pharmaceuticals R&D, and part six sums up the discourse and reiterates the solutions to the problems identified.