Privacy Law Commons^™

The Eeoc, The Ada, And Workplace Wellness Programs, Samuel R. Bagenstos

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It seems that everybody loves workplace wellness programs. The Chamber of Commerce has firmly endorsed those progarms, as have other business groups. So has President Obama, and even liberal firebrands like former Senator Tom Harkin. And why not? After all, what's not to like about programs that encourage people to adopt healthy habits like exercise, nutritious eating, and quitting smoking? The proponents of these programs speak passionately, and with evident good intentions, about reducing the crushing burden that chronic disease places on individuals, families, communities, and the economy as a whole. What's not to like? Plenty. Workplace wellness programs are …

Democratic Surveillance, Mary Anne Franks

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No abstract provided.

"Revenge Porn" Reform: A View From The Front Lines, Mary Anne Franks

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The legal and social landscape of "revenge porn" has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the ternm "revenge porn." As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; federal criminal legislation on the issue had been introduced in Congress; Google, Facebook, and Twitter had banned nonconsensual pornography from their platforms; and the term "revenge porn" had been added to the Merriam- Webster Dictionary. I have had the privilege of playing a role in many …

Lessons Learned Too Well: Anonymity In A Time Of Surveillance, A. Michael Froomkin

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It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity-one of the two most important tools that protect online communicative freedom-is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.

This Article traces …

Privacy, Vulnerability, And Affordance, Ryan Calo

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This essay begins to unpack the complex, sometimes contradictory relationship between privacy and vulnerability. I begin by exploring how the law conceives of vulnerability — essentially, as a binary status meriting special consideration where present. Recent literature recognizes vulnerability not as a status but as a state — a dynamic and manipulable condition that everyone experiences to different degrees and at different times. I then discuss various ways in which vulnerability and privacy intersect. I introduce an analytic distinction between vulnerability rendering, i.e., making a person more vulnerable, and the exploitation of vulnerability whether manufactured or native. I also describe …

Self-Defense Against Robots And Drones, A. Michael Froomkin, P. Zak Colangelo

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Robots can pose-or can appear to pose-a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or Peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This Article addresses all those issues and one more. what rules and standards we could put into place to make the resolution of those questions easier and …

From Anonymity To Identification, A. Michael Froomkin

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This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational …

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

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Encroachments on privacy through mass surveillance greatly resemble the pollution crisis in that they can be understood as imposing an externality on the surveilled. This Article argues that this resemblance also suggests a solution: requiring those conducting mass surveillance in and through public spaces to disclose their plans publicly via an updated form of environmental impact statement, thus requiring an impact analysis and triggering a more informed public conversation about privacy. The Article first explains how mass surveillance is polluting public privacy and surveys the limited and inadequate doctrinal tools available to respond to mass surveillance technologies. Then, it provides …

The Right To Be Forgotten: Who Decides What The World Forgets, Patricia S. Abril, Jacqueline D. Lipton

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In May 2014, the Court of Justice for the European Union ("CJEU") surprised the global cyberlaw community by holding that search engines like Google are "controllers" of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual's rights under the Directive. This obligation has come to be referred to as an aspect of a digital right to be forgotten." The search results in question related to a mortgage sale of property in a bankruptcy …

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

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Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

Taxation And Surveillance: An Agenda, Michael Hatfield

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Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …

Can Americans Resist Surveillance?, Ryan Calo

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This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan

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A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.

Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.

This Article proposes allowing what it terms “bounded access” to …

The 1 Percent Solution: Corporate Tax Returns Should Be Public (And How To Get There), Reuven S. Avi-Yonah, Ariel Siman

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The justification for publishing corporate tax returns is that corporations are given immense benefits by the state that bestows upon them unlimited life and limited liability, and therefore they owe the public the information of how they treat the state that created them. Tax returns, like the financial disclosures that publicly traded corporations must file with the SEC, also provide useful information to shareholders, creditors, and the investing public.

Hands Off Our Fingerprints: State, Local, Andindividual Defiance Of Federal Immigrationenforcement, Christine N. Cimini

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Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the fingerprints against its immigration database. In the event of a match, an immigration detainer can be issued and an individual held after they would otherwise be entitled to release. Originally designed as a voluntary program in which local governments could choose to participate, the Department …

Communications Privacy For And By Whom?, Ryan Calo

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A response to Professor Orin Kerr's The Next Generation Communications Privacy Act, which makes a series of quiet assumptions, however, that readers may find controversial.

First, the Article reads as though ECPA exists only to protect citizens from public officials. According to its text and to case law, however, ECPA also protects private citizens from one another in ways any new act should revisit.

Second, the Article assumes that society should address communications privacy with a statute, whereas specific experiences with ECPA suggest that the courts may be better suited to address communications privacy—for reasons Professor Kerr himself offers. …

Privacy Harm Exceptionalism, Ryan Calo

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“Exceptionalism” refers to the belief that a person, place, or thing is qualitatively different from others in the same basic category. Thus, some have spoken of America’s exceptionalism as a nation. Early debates about the Internet focused on the prospect that existing laws and institutions would prove inadequate to govern the new medium of cyberspace. Scholars have made similar claims about other areas of law.

The focus of this short essay is the supposed exceptionalism of privacy. Rather than catalogue all the ways that privacy might differ from other concepts or areas of study, I intend to focus on the …

The Field In Ireland In 2014, Tom Dunne

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Repossessions are an important part of recovery in the housing market

The Fourth Amendment In The Information Age, Ricardo J. Bascuas

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In 2013, the Supreme Court tacitly conceded that the expectations-of-privacy test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never despite widespread agreement to the contrary been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the expectations-of-privacy test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the expectations-of-privacy test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private …

"Pets Must Be On A Leash": How U.S. Law (And Industry Practice) Often Undermines And Even Forbids Valuable Privacy Enhancing Technology, A. Michael Froomkin

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No abstract provided.

Against Notice Skepticism In Privacy (And Elsewhere), M. Ryan Calo

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What follows is an exploration of innovative new ways to deliver privacy notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of “visceral” notice leverage a consumer’s very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. The thesis of …

Consumer Subject Review Boards: A Thought Experiment, Ryan Calo

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The adequacy of consumer privacy law in America is a constant topic of debate. The majority position is that United States privacy law is a “patchwork,” that the dominant model of notice and choice has broken down, and that decades of self-regulation have left the fox in charge of the henhouse. A minority position chronicles the sometimes surprising efficacy of our current legal infrastructure.

But the challenges posed by big data to consumer protection feel different. They seem to gesture beyond privacy’s foundations or buzzwords, beyond “fair information practice principles” or “privacy by design.” The challenges of big data may …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

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Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

Disentangling Administrative Searches, Eve Brensike Primus

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Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

The Boundaries Of Privacy Harm, M. Ryan Calo

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Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

People Can Be So Fake: A New Dimension To Privacy And Technology Scholarship, M. Ryan Calo

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This article updates the traditional discussion of privacy and technology, focused since the days of Warren and Brandeis on the capacity of technology to manipulate information. It proposes a novel dimension to the impact of anthropomorphic or social design on privacy.

Technologies designed to imitate people-through voice, animation, and natural language-are increasingly commonplace, showing up in our cars, computers, phones, and homes. A rich literature in communications and psychology suggests that we are hardwired to react to such technology as though a person were actually present.

Social interfaces accordingly capture our attention, improve interactivity, and can free up our hands …

Peeping Hals: Making Sense Of Artificial Intelligence And Privacy, Ryan Calo

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The field of artificial intelligence, broadly defined as the study and practice of designing intelligent agents, is at least six decades into its existence as a formal discipline. Sometimes called “computational” or “synthetic” intelligence, AI borrows from and informs a wide variety of subjects, including philosophy, psychology, linguistics, neuroscience, statistics, economics, and law. Techniques of AI underpin all manner of industrial and consumer applications - from the complex neural nets used in data mining, down to the ‘fuzzy logic’ used by commercial washers and driers.

Insofar as “the issues of AI are directly related to [the] self-image of human beings”, …

Two Notions Of Privacy Online, Avner Levin, Patricia S. Abril

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Users of social networking websites tend to disclose much personal information online yet seem to retain some form of an expectation of privacy. Is this expectation of privacy always unreasonable? How do users of online social networks define their expectations of privacy online?

These questions were the impetus behind an empirical study, the findings of which are presented in this Article. The project, simultaneously conducted in Canada, at Ryerson University, and in the United States, at the University of Miami, consisted of a survey regarding personal information protection and expectations of privacy on online social networks (OSNs). Approximately 2,500 young …

Are "Better" Security Breach Notification Laws Possible?, Jane K. Winn

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This Article will evaluate the provisions of California's pioneering security breach notification law (SBNL) in light of "better regulation" or "smart regulation" criteria in order to highlight the costs of taking a narrowly focused, piecemeal approach and the benefits of taking a more comprehensive perspective to the problems of identity theft and information security. Just as the basic structure of SBNLs was borrowed from environmental law, this Article will borrow from decades of analysis of the impact of environmental regulation to evaluate the likely impact of SBNLs.

Just as environmental laws can be used to reduce externalities created through the …

Creating A Viral Federal Privacy Standard, A. Michael Froomkin

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No abstract provided.