Privacy Law Commons^™

Fourth Amendment Anti-Theory, Matthew Tokson

Michigan Law Review

A review of The Digital Fourth Amendment: Privacy and Policing in Our Online World. By Orin Kerr.

A Real Account Of Deep Fakes, Benjamin L.W Sobel

Michigan Law Review

Laws regulating pornographic deepfakes are written to prohibit “digital forgeries,” “false” images, or media “indistinguishable” from “authentic” recordings. Yet the typical anti-deepfake law covers materials that aren’t forgeries, aren’t false, and that reasonable observers can easily distinguish from authentic recordings. Though drafted as if they regulate statements of fact, anti-deepfake laws actually target certain outrageous depictions per se—and rightly so, because pornographic deepfakes cause harm irrespective of their truth or falsity. However, the inapposite language of facts results in statutes with crucial ambiguities. Moreover, because anti-deepfake laws ban outrageous depictions irrespective of the factual assertions they make, they differ fundamentally …

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …

Postmortem Privacy, Anita L. Allen, Jennifer E. Rothman

Michigan Law Review

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining …

On The Genealogy Of Intimate Digital Harm, Aziz Z. Huq

Michigan Law Review

A review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron.

Aerial Trespass And The Fourth Amendment, Randall F. Khalil

Michigan Law Review

Since 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into …

Unfair Collection: Reclaiming Control Of Publicly Available Personal Information From Data Scrapers, Andrew M. Parks

Michigan Law Review

Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.

This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. …

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions …

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

The Language-Game Of Privacy, Joshua A.T. Fairfield

Michigan Law Review

A review of Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone.

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Michigan Law Review

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

The Fight To Frame Privacy, Woodrow Hartzog

Michigan Law Review

In his important new book, Nothing to Hide: The False Tradeoff Between Privacy and Security, Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. Solove understands that privacy is far too vital to our freedom and democracy to accept its inevitable demise. The central thesis of this Review is that Solove's polemic is a strong and desperately needed collection of frames that counterbalances the "nothing …

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy

Michigan Law Review

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …

Information Escrows, Ian Ayres, Cait Unkovic

Michigan Law Review

A variety of information escrows - including allegation escrows, suspicion escrows, and shared-interest escrows - hold the promise of reducing the first-mover disadvantage that can deter people with socially valuable private information from disclosing that information to others. Information escrows allow people to transmit sensitive information to a trusted intermediary, an escrow agent, who only forwards the information under prespecified conditions. For example, an allegation escrow for sexual harassment might allow a victim to place a private complaint into escrow with instructions that the complaint be lodged with the proper authorities only if the escrow agent receives at least one …

Limits Of The Federal Wiretap Act's Ability To Protect Against Wi-Fi Sniffing, Mani Potnuru

Michigan Law Review

Adoption of Wi-Fi wireless technology continues to see explosive growth. However many users still operate their home Wi-Fi networks in unsecured mode or use publicly available unsecured Wi-Fi networks, thus exposing their communications to the dangers of "packet sniffing," a technique used for eavesdropping on a network. Some have argued that communications over unsecured Wi-Fi networks are "readily accessible to the general public" and that such communications are therefore excluded from the broad protections of the Federal Wiretap Act against intentional interception of electronic communications. This Note examines the Federal Wiretap Act and argues that the current Act's treatment of …

Home Is Where The Crime Is, I. Bennett Capers

Michigan Law Review

Think of home. Go on. Maybe not your parents' home, which for this reviewer would be enough to induce heavy breathing and general anxiety. Rather, think about the concept of home. Think about the idea of home. Think about Home with a capital letter. Think of home as in The Wizard of Oz and Dorothy's famous "There's no place like home." Think "home sweet home." Or "home is where the heart is." Go on. Of course, there may be other associations that come to mind when one thinks of home. There's security. Safety. Control. Home rule. After all, in the …

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Michigan Law Review

Part I of our Review discusses the central premises of Understanding Privacy, with particular attention paid to Solove's pragmatic methodology and his taxonomy of privacy. We introduce his pluralistic approach to conceptualizing privacy, which urges decision makers to assess privacy problems in context, and we explore his view that meaningful choices about privacy depend on an appreciation of how privacy benefits society as a whole. We also describe how Solove's taxonomy aims to account for the variety of activities that threaten privacy. In Part II, we analyze the strengths of Solove's pragmatism by demonstrating its functionality and flexibility in …

Do We Need A New Fourth Amendment?, Orin S. Kerr

Michigan Law Review

Slobogin's book offers a new conceptualization of the Fourth Amendment rooted in what he calls the proportionality principle: An investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes . Slobogin roots this principle in Terry v. Ohio and its pragmatic balancing of law-enforcement and privacy interests. To determine how much justification the Fourth Amendment requires, Slobogin argues, courts should assess the intrusiveness of the investigatory technique and then set a proportionate threshold of proof that the government must show. The …

Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz

Michigan Law Review

In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ("DOJ") and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor …

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Michigan Law Review

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in …

Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis

Michigan Law Review

The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political …

Surviving Lawrence V. Texas, Marc Spindelman

Michigan Law Review

The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas - striking down state sodomy laws on Due Process grounds - with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, a turning point in our community's history, and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Gamer, who had been convicted under Texas's sodomy …

Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr

Michigan Law Review

I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Katz Is Dead. Long Live Katz, Peter P. Swire

Michigan Law Review

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that "the Fourth Amendment protects people, not places." The concurrence by Justice Harlan announced the new regime - court-issued warrants are required where there is an infringement on a person's "reasonable expectation of privacy." Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that …

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Michigan Law Review

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a …

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

A Study In Regulatory Method, Local Political Cultures, And Jurisprudential Voice: The Application Of Federal Confidentiality Law To Project Head Start, Richard C. Boldt

Michigan Law Review

This article focuses on one particular set of issues raised by the effort to coordinate the activities of Head Start centers with those of substance abuse treatment programs and the introduction of treatment and prevention functions into the daily interactions of Head Start staff and parents. These issues involve the disclosure of potentially damaging information about a Head Start parent's drug or alcohol abuse and the confidentiality considerations that arise when she or he has sought or received treatment for that abuse. Although it is possible to characterize these issues as technical, doctrinal questions of statutory and regulatory interpretation, it …

The Countermajoritarian Paradox, Neal Davis

Michigan Law Review

A Review of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. by David J. Garrow