Privacy Law Commons^™

Aadhaar: India’S National Identification System And Consent-Based Privacy Rights, Anvitha S. Yalavarthy

Vanderbilt Journal of Transnational Law

India’s national identification program, Aadhaar, created the largest national biometric database in the world. While the program is touted as voluntary, the increasing dependence on it, and the laws surrounding it, make it de facto mandatory. This Note examines the social and legal landscapes surrounding the Aadhaar program along with the principles of data privacy and biometric data collection in the European Union and the United States to show how those principles can and should apply to the Aadhaar system.

This Note suggests that the way to strengthen the Aadhaar system’s privacy regime is by balancing the principles of necessity …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

A Zebra's Trust: How Rare Disease Communities' Participation In Data Trusts' Governance Builds Trust And Drives Research, Samantha C. Smith

Vanderbilt Journal of Transnational Law

Data sharing plays an increasingly prominent role in society, but it remains a necessary component of rare disease research. Because rare diseases are--as the name indicates-- rare, researchers have only a small number of patients from whom to collect data, and the expense of cross-border data sharing to increase research data is significant. Nevertheless, the rise of artificial intelligence and precision medicine increases the need for usable rare disease data. Current legislation and regulations aimed at addressing rare diseases fall short in addressing these data sharing needs for rare disease research. While the European Union (EU) has invested in rare …

How To Make The Perfect Citizen? Lessons From China's Social Credit System, Liav Orgad, Wessel Reijers

Vanderbilt Journal of Transnational Law

"How to make the perfect citizen?" This has been one of the questions driving the construction of the Chinese Social Credit System: a technology-driven project that aims to assess, evaluate, and steer the behavior of Chinese citizens. After presenting social credit systems in China's public and private sectors (Part II), the Article provides normative standards to distinguish the Chinese system from comparable systems in liberal democracies (Part III). It then discusses the concept of civic virtue, as implemented by the Social Credit System, claiming that it creates a new form of governance, "cybernetic citizenship," which fundamentally changes the essence of …

Data Imperialism: The Gdpr's Disastrous Impact On Africa's E-Commerce Markets, Cara Mannion

Vanderbilt Journal of Transnational Law

The European Union (EU) recently passed the General Data Protection Regulation--a sweeping regulatory framework that sets a new global standard for the collection, storage, and use of personal data. To ensure far-reaching compliance with the GDPR, the EU has adopted a strict take-it-or-leave-it approach--countries that wish to engage with digital users in the EU must either comply with the GDPR's expansive data obligations or risk losing access to the world's largest trading block.

This presents significant obstacles for several African nations. Notably, no African country currently has domestic laws that comply with the GDPR. Even if they did, several African …

Pharming Out Data: A Proposal For Promoting Innovation And Public Health Through A Hybrid Clinical Data Protection Scheme, Lea M. Gulotta

Vanderbilt Journal of Transnational Law

The pharmaceutical industry, one of the largest industries in the world, is rapidly becoming globalized. Clinical trials, which are required for drugs to be approved for human use, are increasingly performed outside of the pharmaceutical company's home country in an attempt to save money. This is mainly due to drug development's steep costs, and the high risks involved in an industry where only 12 percent of products that begin development ever make it to market. In order to help offset these risks and encourage innovation, many countries offer clinical trial data certain protections through patents, market exclusivity, or trade secret …

A Look Into The Data Privacy Crystal Ball: A Survey Of Possible Outcomes For The Eu-U.S. Privacy Shield Agreement, Emily Linn

Vanderbilt Journal of Transnational Law

The trade relationship between the European Union and the United States, the largest cross-border data flow in the world, is in a state of uncertainty. Operating under different notions of what privacy should look like and divergent legal protections for personal data, the European Union and United States have struggled to reach a mutually acceptable agreement in the past. This Note analyzes their latest attempt, the EU-U.S. Privacy Shield, with specific emphasis on (1) the way it has improved upon its predecessor, the EU-U.S. Safe Harbor; (2) the weaknesses that still remain; and (3) the external factors that threaten the …

Gimme Shelter: International Political Asylum In The Information Age, Jacob Stafford

Vanderbilt Journal of Transnational Law

On June 5, 2013, an article in the Guardian revealed highly classified information about surveillance operations being performed by the United States National Security Administration (NSA). The source of this information was a former NSA contractor named Edward Snowden. After arriving in Moscow on June 23, Snowden spent the next forty days in the transit area of Sheremetyevo International Airport in a bizarre state of geopolitical purgatory. Eventually, Russia granted Snowden temporary asylum for one year, followed by a three-year residency permit. This Note uses Snowden's circumstance to consider the current state of international political asylum within the context of …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Civilians In Cyberwarfare: Conscripts, Susan W. Brenner, Leo L. Clarke

Vanderbilt Journal of Transnational Law

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation's infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their …

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources, Kuei-Jung Ni

Vanderbilt Journal of Transnational Law

Since the Convention on Biological Diversity (CBD) has been in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. A requirement of prior informed consent (PIC) by the people controlling access to genetic resources constitutes a major instrument to deter illegal bioprospecting and to ensure fair access to genetic resources.

This Article aims to analyze the continuing global lawmaking on PIC and to conduct a comparative study on how genetically rich nations implement the PIC requirement with a view to examining whether the genuine mandate of the CBD has been fulfilled.

This …

The Headscarf As Threat: A Comparison Of German And U.S. Legal Discourses, Robert A. Kahn

Vanderbilt Journal of Transnational Law

This Article compares how U.S. and German judges conceptualize the harm the headscarf poses to society. The examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching, and State v. Freeman, in which a Florida court held that a woman could not pose for a driver's license photograph wearing a garment (the niqab) that covered all of her face except her eyes. While judges and …

Japan's Communications Interception Act: Unconstitutional Invasion Of Privacy Or Necessary Tool?, Lillian R. Gilmer

Vanderbilt Journal of Transnational Law

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a …

The European Union Data Privacy Directive And International Relations, Steven R. Salbu

Vanderbilt Journal of Transnational Law

This Article explores the European Union Data Privacy Directive and its impact upon international relations. Part II provides a background upon which the Privacy Directive is built. In Part III, the Article confronts the differences between how the United States and its European counterparts address privacy issues generally. Part IV analyzes the Privacy Directive in detail, while Part V explores possible effects that the Privacy Directive might have on international relations.

The Eu Privacy Directive And The Resulting Safe Harbor, Angela Vitale

Vanderbilt Journal of Transnational Law

The rapid growth of the Internet and the importance of international business operations have thrust the issue of Internet privacy into the center of domestic and international political debates. Varying definitions of privacy have led to numerous--often inconsistent--legislative schemes to protect privacy on the Internet. These inconsistencies have made it difficult for companies to penetrate foreign markets and to maintain international operations. Of primary concern to U.S. companies is the EU Privacy Directive. The Directive requires U.S. companies that attempt to interact with potential customers or their own employees in the European Union either to qualify for a "Safe Harbor" …

Polish Communications Law: Telecommunications Takes Off In Transition Countries But At What Price Are They Becoming Wired?, Jennifer L. Feltham

Vanderbilt Journal of Transnational Law

Internationally, the urge to expand and improve telecommunications services is spreading. Transition countries, attempting the leap from Third World status to becoming world leaders, have caught the fever and have attempted to reform their regulations governing telecommunications. In large part these laws have induced slow liberalization of the communications sector with an intrusive regulatory agency guarding every step taken towards privatization. The World Trade Organization's General Agreement on Trade in Services (GATS) encourages transition countries to use privatization as a way to increase funding for communications equipment. Many transition countries signed the GATS agreement in the hope of attracting international …

Argument For The Allocation Of Resources To The Development Of A Well-Defined System Of Real Property Law In The Czech Republic, Donovan W. Burke

Vanderbilt Journal of Transnational Law

This Note analyzes the enormous burden that the Czech Republic faces in its transition from a command to a market economy. Part of the burden is the privatization of real property. Toward privatization, the government of the Czech Republic has thus far focused its resources on allocating real property to private parties through the process of restitution. Technically, title to real property in the Czech Republic has always been held by private parties, but such ownership was meaningless because the state had virtually limitless power to use the property. The author recognizes that unless the Czech government develops substantive real …

The Impact Of Freedom Of Information Legislation On Criminal Discovery In Comparative Common Law Perspective, Michael Taggart

Vanderbilt Journal of Transnational Law

This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country.

The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that …

Changing Patterns Of Ownership Rights In The People's Republic Of China: A Legal And Economic Analysis In The Context Of Economic Reforms And Social Conditions, Paul Cantor, James Kraus

Vanderbilt Journal of Transnational Law

This Article analyzes the legal and economic effects of privatization and the changing patterns of ownership rights in the People's Republic of China. After an overview of Chinese concepts of property rights, the authors discuss the history of China's post-liberation nationalization process and the movement back toward privatization and decentralization. Privatization has led Chinese law toward the recognition of private rights and duties in property law matters. The authors examine China's basis for altering ownership rights and moving in the direction of a market-oriented economy. The Constitution of the People's Republic of China and Chinese statutes contain specific language delineating …

Customs Inspectors And International Mail: To Open Or Not To Open?, Andrew H. Meyer

Vanderbilt Journal of Transnational Law

This Note analyzes the United States statutes and regulations prescribing the standards for the search and seizure of international mail entering and leaving this country. It also examines cases construing these issues prior to the Supreme Court's decision in United States v. Ramsey. In addition, it discusses the Ramsey decision itself and cases decided subsequent to it. Finally, this Note comments on the confusion that has followed the Ramsey decision and sets forth possible solutions.

The Constitutionality Of The Foreign Intelligence Surveillance Act Of 1978, Judith B. Anderson

Vanderbilt Journal of Transnational Law

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute …

Recent Treaties, James H. Bloem

Vanderbilt Journal of Transnational Law

To obtain information on the financial dealings of organized crime in Switzerland, the United States must show both probable cause and the absence of a reasonable possibility of conviction without the information. Thus, Switzerland has preserved its prudent and traditional requirement of secrecy with respect to transactions of those who utilize its financial institutions. Because the Treaty was drafted in two different legal environments, conflicts may rise under it. The limitation on use of any disclosed information to investigations or proceedings for which the information originally was granted does not coincide with the United States rule of evidence that allows …