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Articles 61 - 86 of 86
Full-Text Articles in Privacy Law
What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson
What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson
Faculty Articles
This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …
Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen
Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen
Faculty Articles
A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …
Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson
Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson
Faculty Articles
In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …
Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino
Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino
Faculty Articles
Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.
Expectations Of Privacy In Social Media, Stephen E. Henderson
Expectations Of Privacy In Social Media, Stephen E. Henderson
Faculty Articles
This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …
The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson
The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson
Faculty Articles
In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …
Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard
Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard
Oklahoma Law Review
No abstract provided.
The Constitutional And Contractual Controversy Of Suspicionless Drug Testing Of Public School Teachers, Amanda H. Cooley, Marka B. Fleming, Gwendolyn Mcfadden Wade
The Constitutional And Contractual Controversy Of Suspicionless Drug Testing Of Public School Teachers, Amanda H. Cooley, Marka B. Fleming, Gwendolyn Mcfadden Wade
Oklahoma Law Review
No abstract provided.
Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, Kimberly Self
American Indian Law Review
No abstract provided.
Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino
Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino
Faculty Articles
Clinicians and scientists use functional magnetic resonance imaging (fMRI) to map sensory, motor, and cognitive function and to study the neural correlates of a range of physical and mental conditions, behaviors, characteristics, and preferences. Due to its move outside the clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being examined within the overlapping fields of neuroethics and neurolaw. The early neuroethics and neurolaw scholarship focused heavily on the implications of fMRI for evidence law, criminal law, criminal procedure, and constitutional law. Little attention has been paid, however, to the implications of advances …
Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure, Stacey A. Tovino
Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure, Stacey A. Tovino
Faculty Articles
In this article I explore the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards (IRBs) charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research …
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
Faculty Articles
If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …
Trentadue V. Integrity Committee: An Attempt To Reign In The Expansion Of The Freedom Of Information Act’S 5th Exemption, Amanda Marie Swain
Trentadue V. Integrity Committee: An Attempt To Reign In The Expansion Of The Freedom Of Information Act’S 5th Exemption, Amanda Marie Swain
Oklahoma Law Review
No abstract provided.
Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino
Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino
Faculty Articles
Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …
Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson
Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson
Faculty Articles
For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …
Functional Neuroimaging Information: A Case For Neuro Exceptionalism, Stacey A. Tovino
Functional Neuroimaging Information: A Case For Neuro Exceptionalism, Stacey A. Tovino
Faculty Articles
Functional magnetic resonance imaging (fMRI) has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade's most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including schizophrenia, addiction, racial evaluation, deception, cooperation, and sexual preferences. Now poised to move outside the research context, functional neuroimaging raises a number of confidentiality, privacy, and identity issues. In this Article, I examine whether special, or heightened, confidentiality, privacy, and informed …
The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson
The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson
Other Faculty Publications
For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable expectation …
Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson
Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson
Faculty Articles
We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to …
Hospital Chaplaincy Under The Hipaa Privacy Rule: Health Care Or Just Visiting The Sick, Stacey A. Tovino
Hospital Chaplaincy Under The Hipaa Privacy Rule: Health Care Or Just Visiting The Sick, Stacey A. Tovino
Faculty Articles
No abstract provided.
Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson
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 …
The Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino
The Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino
Faculty Articles
No abstract provided.
Litigating Medical Malpractice Cases In Oklahoma: The Aftermath Of Hipaa, Melissa A. Couch
Litigating Medical Malpractice Cases In Oklahoma: The Aftermath Of Hipaa, Melissa A. Couch
Oklahoma Law Review
No abstract provided.
The Use And Disclosure Of Protected Health Information For Research Under The Hipaa Privacy Rule: Unrealized Patient Autonomy And Burdensome Government Regulation, Stacey A. Tovino
The Use And Disclosure Of Protected Health Information For Research Under The Hipaa Privacy Rule: Unrealized Patient Autonomy And Burdensome Government Regulation, Stacey A. Tovino
Faculty Articles
No abstract provided.
Constitutional Law: Beyond The Bounds Of Roe: Does Stenberg V. Carhart Invalidate The Partial-Birth Abortion Ban Act Of 2003, Scott A. Hodges
Constitutional Law: Beyond The Bounds Of Roe: Does Stenberg V. Carhart Invalidate The Partial-Birth Abortion Ban Act Of 2003, Scott A. Hodges
Oklahoma Law Review
No abstract provided.
Potential Abrogation Of Attorney-Client Privilege In Oklahoma As A Result Of Hipaa, Alexander M. Bednar
Potential Abrogation Of Attorney-Client Privilege In Oklahoma As A Result Of Hipaa, Alexander M. Bednar
Oklahoma Law Review
No abstract provided.
Section 1983: Agent Of Peace Or Vehicle Of Violence Against Children?, Susan H. Bitensky
Section 1983: Agent Of Peace Or Vehicle Of Violence Against Children?, Susan H. Bitensky
Oklahoma Law Review
No abstract provided.