Privacy Law Commons^™

The Gdpr-Blockchain Paradox: Exempting Permissioned Blockchains From The Gdpr, Anisha Mirchandani

Fordham Intellectual Property, Media and Entertainment Law Journal

When considering the legal landscape emerging after the General Data Protection Regulation went into effect on May 25, 2018, the uncertainty surrounding the Regulation reaches its peak when it is applied to blockchain technology. While the goals of storing personal data on permissioned blockchains may align with the goals of accuracy and transparency emulated by the GDPR, the language of the Regulation makes it likely that blockchain technology, as a whole, violates the GDPR. Permissioned blockchains have promising use cases and developments that have not only streamlined data storage, but also allowed users to have increased control over who accesses …

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing …

Shopping For Privacy: How Technology In Brick-And-Mortar Retail Stores Poses Privacy Risks For Shoppers, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

As technology continues to rapidly advance, the American legal system has failed to protect individual shoppers from the technology implemented into retail stores, which poses significant privacy risks but does not violate the law. In particular, I examine the technologies implemented into many brick-and-mortar stores today, many of which the average everyday shopper has no idea exists. This Article criticizes these technologies, suggesting that many, if not all of them, are questionable in their legality taking advantage of their status in a legal gray zone. Because the American judicial system cannot adequately protect the individual shopper from these questionable privacy …

Data Scraping As A Cause Of Action: Limiting Use Of The Cfaa And Trespass In Online Copying Cases, Kathleen C. Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, online platforms have used claims such as the Computer Fraud and Abuse Act (“CFAA”) and trespass to curb data scraping, or copying of web content accomplished using robots or web crawlers. However, as the term “data scraping” implies, the content typically copied is data or information that is not protected by intellectual property law, and the means by which the copying occurs is not considered to be hacking. Trespass and the CFAA are both concerned with authorization, but in data scraping cases, these torts are used in such a way that implies that real property norms exist …

The Future Of Facial Recognition Is Not Fully Known: Developing Privacy And Security Regulatory Mechanisms For Facial Recognition In The Retail Sector, Elias Wright

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the …

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …

Transparency And The Marketplace For Student Data, N. Cameron Russell, Joel R. Reidenberg, Elizabeth Martin, Thomas B. Norton

Center on Law and Information Policy

Student lists are commercially available for purchase on the basis of ethnicity, affluence, religion, lifestyle, awkwardness, and even a perceived or predicted need for family planning services. This study seeks to provide an understanding of the commercial marketplace for student data and the interaction with privacy law. Over several years, Fordham CLIP reviewed publicly-available sources, made public records requests to educational institutions, and collected marketing materials received by high school students. The study uncovered and documents an overall lack of transparency in the student information commercial marketplace and an absence of law to protect student information.

After The Gold Rush: The Boom Of The Internet Of Things, And The Busts Of Data-Security And Privacy, Dalmacio V. Posadas Jr.

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article addresses the impact that the lack of oversight of the Internet of Things has on digital privacy. While the Internet of Things is but one vehicle for technological innovation, it has created a broad glimpse into domestic life, thus triggering several privacy issues that the law is attempting to keep pace with. What the Internet of Things can reveal is beyond the control of the individual, as it collects information about every practical aspect of an individual’s life, and provides essentially unfettered access into the mind of its users. This Article proposes that the federal government and the …

Welcome To The Metropticon: Protecting Privacy In A Hyperconnected Town, Kelsey Finch, Omer Tene

Fordham Urban Law Journal

No abstract provided.

Smart Law For Smart Cities, Annie Decker

Fordham Urban Law Journal

No abstract provided.

Show Me The Warrant: Protection Of Stored Electronic Communications In New York State, Kaitlin G. Klamann

Fordham Urban Law Journal

No abstract provided.

Crime, Surveillance, And Communities, Bennett Capers

Fordham Urban Law Journal

We have become a surveillance state. Cameras—both those controlled by the state, and those installed by private entities—watch our every move, at least in public. For the most part, courts have deemed this public surveillance to be beyond the purview of the Fourth Amendment, meaning that it goes largely unregulated—a cause for alarm for many civil libertarians. This Article challenges these views and suggests that we must listen to communities in thinking about cameras and other surveillance technologies. For many communities, public surveillance not only has the benefit of deterring crime and aiding in the apprehension of criminals. It can …

You Didn't Even Notice! Elements Of Effective Online Privacy Policies, Amanda Grannis

Fordham Urban Law Journal

No abstract provided.

Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub

Faculty Scholarship

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …

Online Harassment, Defamation, And Hateful Speech: A Primer Of The Legal Landscape, Alice E. Marwick, Ross Miller

Center on Law and Information Policy

This interdisciplinary project focused on online speech directed at women and seeks to provide a primer on (i) what legal remedies, if any, are available for victims of sexist, misogynist, or harassing online speech, and (ii) if such legal remedies and procedures exist, whether practical hurdles stand in the way of victims’ abilities to stop harassing or defamatory behavior and to obtain legal relief. The study concluded that while online harassment and hateful speech is a significant problem, there are few legal remedies for victims. This is partly due to issues of jurisdiction and anonymity, partly due to the protection …

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Privacy In Public, Joel R. Reidenberg

Faculty Scholarship

As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development …

The Data Surveillance State In Europe And The United States, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green

Faculty Scholarship

This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …