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Articles 1 - 30 of 42
Full-Text Articles in Privacy Law
Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky
Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky
UF Law Faculty Publications
This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …
Enhanced Privacy-Enabled Face Recognition Using Κ-Identity Optimization, Ryan Karl
Enhanced Privacy-Enabled Face Recognition Using Κ-Identity Optimization, Ryan Karl
Department of Electrical and Computer Engineering: Dissertations, Theses, and Student Research
Facial recognition is becoming more and more prevalent in the daily lives of the common person. Law enforcement utilizes facial recognition to find and track suspects. The newest smartphones have the ability to unlock using the user's face. Some door locks utilize facial recognition to allow correct users to enter restricted spaces. The list of applications that use facial recognition will only increase as hardware becomes more cost-effective and more computationally powerful. As this technology becomes more prevalent in our lives, it is important to understand and protect the data provided to these companies. Any data transmitted should be encrypted …
Brief Of Amici Curiae Privacy And First Amendment Law Professors In Support Of Defendant-Appellant And Reversal, G. S. Hans, Hannah Bloch-Wehba, Danielle K. Citron, Julie E. Cohen, Mary Anne Franks, Woodrow Hartzog, Margot E. Kaminski, Gregory P. Magarian, Frank Pasquale, Neil Richards, Daniel J. Solove
Brief Of Amici Curiae Privacy And First Amendment Law Professors In Support Of Defendant-Appellant And Reversal, G. S. Hans, Hannah Bloch-Wehba, Danielle K. Citron, Julie E. Cohen, Mary Anne Franks, Woodrow Hartzog, Margot E. Kaminski, Gregory P. Magarian, Frank Pasquale, Neil Richards, Daniel J. Solove
Faculty Scholarship
STATEMENT OF INTEREST: Amici curiae are law professors and scholars of data privacy, constitutional law, and the First Amendment. Amici write to provide the court with scholarly expertise on the complexities of data privacy law and its intersection with the First Amendment. Amici have collectively written scores of academic articles and multiple books on data privacy, technology, the First Amendment, and constitutional challenges to state and federal privacy regulation.
Amici submit this brief pursuant to Fed. Rule App. P. 29(a) and do not repeat arguments made by the parties. No party’s counsel authored this brief, or any part of …
Liking The Intrusion Analysis In In Re Facebook, Jane R. Bambauer
Liking The Intrusion Analysis In In Re Facebook, Jane R. Bambauer
UF Law Faculty Publications
In re Facebook preserved a class action brought against Facebook based on its mass collection of web browsing data. Although the plaintiffs brought several common law and statutory causes of action, I will focus on the court’s analysis of intrusion upon seclusion. This is where the case makes its greatest contribution to 21st century jurisprudence. It clears up several puzzles that had troubled the tort (and indeed my own thinking) to the great benefit of tort theory and the progress of privacy law
Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler
Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler
Faculty Scholarship
The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …
A Trusted Framework For Cross-Border Data Flows, Alex Joel
A Trusted Framework For Cross-Border Data Flows, Alex Joel
Joint PIJIP/TLS Research Paper Series
The German Marshall Fund of the United States (GMF), in cooperation with the Tech, Law and Security Program (TLS) of the American University Washington College of Law, and with support from Microsoft, convened a Global Taskforce to Promote Trusted Sharing of Data comprising experts from civil society, academia, and industry to submit proposals for harmonizing approaches to global data use and sharing. Former US Ambassador to the Organisation for Economic Co-operation and Development (OECD) and GMF Distinguished Fellow Karen Kornbluh and Microsoft Chief Privacy Officer and Corporate Vice President Julie Brill co-chaired the taskforce; TLS Senior Project Director Alex Joel …
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
National Telecommunications And Information Administration: Comments From Researchers At Boston University And The University Of Chicago, Ran Canetti, Aloni Cohen, Chris Conley, Mark Crovella, Stacey Dogan, Marco Gaboardi, Woodrow Hartzog, Rory Van Loo, Christopher Robertson, Katharine B. Silbaugh
National Telecommunications And Information Administration: Comments From Researchers At Boston University And The University Of Chicago, Ran Canetti, Aloni Cohen, Chris Conley, Mark Crovella, Stacey Dogan, Marco Gaboardi, Woodrow Hartzog, Rory Van Loo, Christopher Robertson, Katharine B. Silbaugh
Faculty Scholarship
These comments were composed by an interdisciplinary group of legal, computer science, and data science faculty and researchers at Boston University and the University of Chicago. This group collaborates on research projects that grapple with the legal, policy, and ethical implications of the use of algorithms and digital innovation in general, and more specifically regarding the use of online platforms, machine learning algorithms for classification, prediction, and decision making, and generative AI. Specific areas of expertise include the functionality and impact of recommendation systems; the development of Privacy Enhancing Technologies (PETs) and their relationship to privacy and data security laws; …
Opaque Notification: A Country-By-Country Review, Lauren Mantel
Opaque Notification: A Country-By-Country Review, Lauren Mantel
Joint PIJIP/TLS Research Paper Series
No abstract provided.
Femtechnodystopia, Leah R. Fowler, Michael Ulrich
Femtechnodystopia, Leah R. Fowler, Michael Ulrich
Faculty Scholarship
Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral …
Artificial Intelligence Tools In Clinical Neuroradiology: Essential Medico-Legal Aspects, Dennis M. Hedderich, Christian Weisstanner, Sofie Van Cauter, Christian Federau, Myriam Edjlali, Alexander Radbruch, Sara Gerke, Sven Haller
Artificial Intelligence Tools In Clinical Neuroradiology: Essential Medico-Legal Aspects, Dennis M. Hedderich, Christian Weisstanner, Sofie Van Cauter, Christian Federau, Myriam Edjlali, Alexander Radbruch, Sara Gerke, Sven Haller
Faculty Scholarly Works
Commercial software based on artificial intelligence (AI) is entering clinical practice in neuroradiology. Consequently, medico-legal aspects of using Software as a Medical Device (SaMD) become increasingly important. These medico-legal issues warrant an interdisciplinary approach and may affect the way we work in daily practice. In this article, we seek to address three major topics: medical malpractice liability, regulation of AI-based medical devices, and privacy protection in shared medical imaging data, thereby focusing on the legal frameworks of the European Union and the USA. As many of the presented concepts are very complex and, in part, remain yet unsolved, this article …
The Health Care Industry Is Ready For A Revolution: Its Privacy Laws Are Not, Erin Rutherford
The Health Care Industry Is Ready For A Revolution: Its Privacy Laws Are Not, Erin Rutherford
Student Scholarship
This paper highlights the costs and benefits associated with the gathering, storing, analyzing, and digitizing of health information; examines current privacy laws and their inadequacies in the new and constantly changing digital health world; and then provides a proposal framework to balance encouraging innovation while protecting individual autonomy. The article specifically proceeds as follows. This paper first discusses of the evolution of the health industry, from paper records to the wide array of sources generating health information today. Next, it considers the benefits to the ever-increasing amount of health information, which, while considerable can often be in tension with privacy …
Consumers' Perceptions Of Digital Privacy In The United States And Japan, Destiny Randle
Consumers' Perceptions Of Digital Privacy In The United States And Japan, Destiny Randle
Whittier Scholars Program
The purpose of my study is to explore the contours of contemporary consumer privacy protections derived from legislation, regulations and publicly available company policies as a way to get a better understanding of how consumer data is protected. A few examples ranging from company-based consumer protection in the United States to data breaches in Japan will be explored and examined. Finally, this paper includes a comparative survey of consumer perceptions and concerns related to personal data privacy in the U.S. and Japan. As a way to assess the degree to which digital privacy and personal data breaches have adversely influenced …
Necessity, Proportionality, And Executive Order 14086, Alex Joel
Necessity, Proportionality, And Executive Order 14086, Alex Joel
Joint PIJIP/TLS Research Paper Series
No abstract provided.
A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.
A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.
Vanderbilt Law School Faculty Publications
As recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how …
Confused About Copyright?, Sara Anne Hook
Confused About Copyright?, Sara Anne Hook
Graduate Scholarship and Professional Work
No abstract provided.
Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson
Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson
Faculty Scholarship
Internet-of-Things (IoT) devices are ubiquitous, but little attention has been paid to how they may incorporate dark patterns despite consumer protections and privacy concerns arising from their unique access to intimate spaces and always-on capabilities. This paper conducts a systematic investigation of dark patterns in 57 popular, diverse smart home devices. We update manual interaction and annotation methods for the IoT context, then analyze dark pattern frequency across device types, manufacturers, and interaction modalities. We find that dark patterns are pervasive in IoT experiences, but manifest in diverse ways across device traits. Speakers, doorbells, and camera devices contain the most …
Who Owns Data? Constitutional Division In Cyberspace, Dongsheng Zang
Who Owns Data? Constitutional Division In Cyberspace, Dongsheng Zang
Articles
Privacy emerged as a concern as soon as the internet became commercial. In early 1995, Lawrence Lessig warned that the internet, though giving us extraordinary potential, was “not designed to protect individuals against this extraordinary potential for others to abuse.” The same technology can “destroy the very essence of what now defines individuality.” Lessig urged that “a constitutional balance will have to be drawn between these increasingly important interests in privacy, and the competing interest in collective security.” Lessig envisioned that creating property rights in data would help individuals by giving them control of their data. As utopian as property …
How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster
How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster
UF Law Faculty Publications
Investigative reporters and the #MeToo movement exposed the widespread use of non-disclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …
Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler
Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler
Law Faculty Scholarship
Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine-the reasonable expectation of privacy teststruggles with conceptual clarity and predictability. The Supreme Court's recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the "maximalist" property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law-what …
Regulating The Risks Of Ai, Margot E. Kaminski
Regulating The Risks Of Ai, Margot E. Kaminski
Publications
Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.
This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …
Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha
Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha
All Faculty Scholarship
In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …
The Great Regulatory Dodge, Helen Nissenbaum, Katherine Strandburg, Salome Viljoen
The Great Regulatory Dodge, Helen Nissenbaum, Katherine Strandburg, Salome Viljoen
Articles
U.S. privacy law is in a renewed moment of regulatory possibility, with both Congress and the states considering sweeping consumer privacy laws. These new proposals to enact “omnibus” privacy protections could be couched as an antidote to the current U.S. privacy regime: a patchwork of sectoral privacy laws stitched atop the background of FTC consumer contract enforcement. However, this Essay maintains that a one-size-fits-all approach cannot successfully capture both privacy’s value and its variability. Yet, it is clearly the case that the present- day sectoral regime in the United States suffers from significant shortcomings. These shortcomings allow behaviors that seem …
Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff
Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff
Articles
The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.
This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …
Governing Smart Cities As Knowledge Commons - Introduction, Chapter 1 & Conclusion, Brett M. Frischmann, Michael J. Madison, Madelyn Sanfilippo
Governing Smart Cities As Knowledge Commons - Introduction, Chapter 1 & Conclusion, Brett M. Frischmann, Michael J. Madison, Madelyn Sanfilippo
Book Chapters
Smart city technology has its value and its place; it isn’t automatically or universally harmful. Urban challenges and opportunities addressed via smart technology demand systematic study, examining general patterns and local variations as smart city practices unfold around the world. Smart cities are complex blends of community governance institutions, social dilemmas that cities face, and dynamic relationships among information and data, technology, and human lives. Some of those blends are more typical and common. Some are more nuanced in specific contexts. This volume uses the Governing Knowledge Commons (GKC) framework to sort out relevant and important distinctions. The framework grounds …
Toward Stronger Data Protection Laws, Margot E. Kaminski
Toward Stronger Data Protection Laws, Margot E. Kaminski
Publications
No abstract provided.
Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson
Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson
Publications
No abstract provided.
Layered Fiduciaries In The Information Age, Zhaoyi Li
Layered Fiduciaries In The Information Age, Zhaoyi Li
Articles
Technology companies such as Facebook have long been criticized for abusing customers’ personal information and monetizing user data in a manner contrary to customer expectations. Some commentators suggest fiduciary law could be used to restrict how these companies use their customers’ data. Under this framework, a new member of the fiduciary family called the “information fiduciary” was born. The concept of an information fiduciary is that a company providing network services to “collect, analyze, use, sell, and distribute personal information” owes customers and end-users a fiduciary duty to use the collected data to promote their interests, thereby assuming fiduciary liability …
The Fourth Amendment's Constitutional Home, Gerald S. Dickinson
The Fourth Amendment's Constitutional Home, Gerald S. Dickinson
Articles
The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …