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Articles 1 - 30 of 32
Full-Text Articles in Privacy Law
Putting Police Body-Worn Camera Footage To Work: A Civil Liberties Evaluation Of Truleo's Ai Analytics Platform, Christopher Slobogin, Farhang Heydari, Max Isaacs, Katie Kinsey, Barry Friedman, Alissa Marque Heydari
Putting Police Body-Worn Camera Footage To Work: A Civil Liberties Evaluation Of Truleo's Ai Analytics Platform, Christopher Slobogin, Farhang Heydari, Max Isaacs, Katie Kinsey, Barry Friedman, Alissa Marque Heydari
Vanderbilt Law School Faculty Publications
This Article summarizes findings from a civilliberties evaluation of Truleo, an Al-powered analytics platform designed to automate thereviewofpolice body-worn camera (BWC) footage. It includes a summary of how Truleo's platform works, policy choices made by the company, and our assessment ofsafeguards and risks of the platform from a civil liberties perspective. This Article also offers a series of recommendations for policymakers considering the adoption of Truleo or similar technologies. These indude the necessity for independent testing of claimed benefits, democratic authorization for deployment, and ongoing transparency and public input around the platform's design and operation. Importantly, this Article argues that …
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.
A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.
Vanderbilt Law School Faculty Publications
As recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how …
Policing Police Tech: A Soft Law Solution, Farhang Heydari, Barry Friedman, Max Isaacs, Katie Kinsey
Policing Police Tech: A Soft Law Solution, Farhang Heydari, Barry Friedman, Max Isaacs, Katie Kinsey
Vanderbilt Law School Faculty Publications
Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.
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Sociotechnical Safeguards For Genomic Data Privacy, Ellen W. Clayton, Zhiyu Wan, Et Al.
Sociotechnical Safeguards For Genomic Data Privacy, Ellen W. Clayton, Zhiyu Wan, Et Al.
Vanderbilt Law School Faculty Publications
Recent developments in a variety of sectors, including health care, research and the direct-to-consumer industry, have led to a dramatic increase in the amount of genomic data that are collected, used and shared. This state of affairs raises new and challenging concerns for personal privacy, both legally and technically. This Review appraises existing and emerging threats to genomic data privacy and discusses how well current legal frameworks and technical safeguards mitigate these concerns. It concludes with a discussion of remaining and emerging challenges and illustrates possible solutions that can balance protecting privacy and realizing the benefits that result from the …
Pure Privacy, Jeffrey Bellin
Pure Privacy, Jeffrey Bellin
Vanderbilt Law School Faculty Publications
In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means. The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …
A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel
A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel
Vanderbilt Law School Faculty Publications
Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …
Protecting Research Data Of Publicly Revealing Participants, Ellen Clayton, B. A. Malin, Kyle J. Mckibbin
Protecting Research Data Of Publicly Revealing Participants, Ellen Clayton, B. A. Malin, Kyle J. Mckibbin
Vanderbilt Law School Faculty Publications
Biomedical researchers collect large amounts of personal data about individuals, which are frequently shared with repositories and an array of users. Typically, research data holders implement measures to protect participants’ identities and unique attributes from unauthorized disclosure. These measures, however, can be less effective if people disclose their participation in a research study, which they may do for many reasons. Even so, the people who provide these data for research often understandably expect that their privacy will be protected. We discuss the particular challenges posed by self-disclosure and identify various steps that researchers should take to protect data in these …
No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans
No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans
Vanderbilt Law School Faculty Publications
A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …
The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein
The Law Of Genetic Privacy: Applications, Implications, And Limitations, Ellen Wright Clayton, Barbara J. Evans, James W. Hazel, Mark A. Rothstein
Vanderbilt Law School Faculty Publications
Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations, …
Policing, Databases, And Surveilance: Five Regulatory Categories, Christopher Slobogin
Policing, Databases, And Surveilance: Five Regulatory Categories, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Databases are full of personal information that law enforcement might find useful. Government access to these databases can be divided into five categories: suspect-driven; profile-driven; event-driven; program-driven and volunteer-driven. This chapter recommends that, in addition to any restrictions imposed by the Fourth Amendment (which currently are minimal), each type of access should be subject to its own regulatory regime. Suspect-driven access should depend on justification proportionate to the intrusion. Profile-driven access should likewise abide by a proportionality principle but should also be subject to transparency, vetting, and universality restrictions. Event-driven access should be cabined by the time and place of …
Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, Christopher Slobogin, James W. Hazel
Who Knows What, And When?: A Survey Of The Privacy Policies Proffered By U.S. Direct-To-Consumer Genetic Testing Companies, Christopher Slobogin, James W. Hazel
Vanderbilt Law School Faculty Publications
Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gatheredb iological materials ent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It …
Is It Time For A Universal Genetic Forensic Database?, J. W. Hazel, Ellen Wright Clayton, B. A. Malin, Christopher Slobogin
Is It Time For A Universal Genetic Forensic Database?, J. W. Hazel, Ellen Wright Clayton, B. A. Malin, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …
Panvasive Surveillance, Political Process Theory And The Nondelegation Doctrine, Christopher Slobogin
Panvasive Surveillance, Political Process Theory And The Nondelegation Doctrine, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should develop the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely's political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement-large-scale police actions that are not based on individualized suspicion-and exposes the incoherence of …
Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin
Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the mere evidence rule in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the object of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search might lead to evidence of wrongdoing triggers a very different inquiry than probable cause to believe that a search will produce evidence of criminal activity. The failure to address the constraints that should be imposed on …
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Vanderbilt Law School Faculty Publications
Professor Capers's article helps stimulate thinking about the way in which community views and individual rights interact. In my view, where police propose to conduct surveillance of groups, as occurs with camera surveillance (including the newly developing drone camera systems)', the affected group should be heavily involved in the authorization process. If the surveillance is authorized, care must be taken to ensure that all members of the group are equally affected by it unless and until individualized suspicion, proportionate to the intrusion, develops. That formula ensures that the interests of both the collective and the individual are protected.
Patient Awareness And Approval For An Opt-Out Genomic Biorepository, Ellen Wright Clayton, Kyle B. Brothers, Matthew J. Westbrook, M. Francis Wright, John A. Myers, Daniel R. Morrison, Jennifer L. Madison, Jill M. Pulley
Patient Awareness And Approval For An Opt-Out Genomic Biorepository, Ellen Wright Clayton, Kyle B. Brothers, Matthew J. Westbrook, M. Francis Wright, John A. Myers, Daniel R. Morrison, Jennifer L. Madison, Jill M. Pulley
Vanderbilt Law School Faculty Publications
Aim: In this study, we sought to assess patient awareness and perceptions of an opt-out biorepository. Materials & methods: We conducted exit interviews with adult patients and parents of pediatric patients having their blood drawn as part of their clinical care at Vanderbilt University Medical Center (TN, USA). Results: 32.9% of all patients and parents of pediatric patients report having heard of the opt-out biorepository, while 92.4% approve of this research effort based on a brief description. Awareness that leftover blood could be used for research increased among adult patients during the study period, from 34.3 to 50.0%. Conclusion: These …
Can The States Keep Secrets From The Federal Government?, Robert A. Mikos
Can The States Keep Secrets From The Federal Government?, Robert A. Mikos
Vanderbilt Law School Faculty Publications
States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …
Rehnquist And Panvasive Searches, Christopher Slobogin
Rehnquist And Panvasive Searches, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance …
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …
Separated By A Common Language? An Examination Of The Transatlantic Dialogue On Data Privacy Law And Policy In The Fight Against Terrorism, Yesha Yadav
Vanderbilt Law School Faculty Publications
This paper examines recent controversies in the legal and policy debate between the U.S. and the EU on the sharing of data in the implementation of transatlantic counter-terrorism measures. The nexus between law and policy in this area is particularly close, reflecting the preferences each jurisdiction has in protecting civil liberty and security interests. While the U.S. and the EU offer differing legal frameworks on data privacy, the strategic importance of data in counter-terrorism law and policy necessitates a joint approach. A failure to arrive at such an approach can result in a series of bilateral agreements between the U.S. …
"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie
"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie
Vanderbilt Law School Faculty Publications
In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …
Government Data Mining And The Fourth Amendment, Christopher Slobogin
Government Data Mining And The Fourth Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-scale data mining by federal agencies devoted to enforcing criminal and counter-terrorism laws has continued unabated. This paper addresses three puzzles about data mining. First, when data mining is undertaken by the government, does it implicate the Fourth Amendment? Second, does the analysis change when data mining is undertaken by private entities which then …
The Failure Of Breast Cancer Informed Consent Statutes, Rachael Anderson-Watts
The Failure Of Breast Cancer Informed Consent Statutes, Rachael Anderson-Watts
Vanderbilt Law School Faculty Publications
Informed consent is a common law concept rooted in the idea that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."' Its aim is to ensure that each patient gets the information she needs to meaningfully consent to medical procedures. Coming of age in the 1970s alongside other important rights movements, informed consent purported to solve medicine's paternalism: doctors too often dictating treatments rather than discussing options. Combating medical paternalism seems a worthwhile goal, given abuses in the past century, but moreover to improve everyday physician-patient encounters. …
Patients And Biobanks, Ellen Wright Clayton
Patients And Biobanks, Ellen Wright Clayton
Vanderbilt Law School Faculty Publications
The question about the privacy of medical information can be stated simply: To what extent can and should patients control what the medical record contains and who has access to it and for what purposes? Patients often have apparently conflicting views on this subject. On the one hand, we, as patients, say that we prize privacy and that we fear that information will be used to harm us. On the other hand, we value the benefits that come from improved communication among providers, such as having our visits covered by third party payers and advances in medical science, which often …
Transaction Surveillance By The Government, Christopher Slobogin
Transaction Surveillance By The Government, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization …
Subpoenas And Privacy, Christopher Slobogin
Subpoenas And Privacy, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an …
Toward Taping, Christopher Slobogin
Toward Taping, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Numerous authors, from all points on the political spectrum, have advocated that police interrogations be taped. But police rarely record custodial questioning, at least in full, and only a handful of courts have found this failure objectionable. This commentary outlines three different constitutional grounds for mandating that such recording become a routine practice. To set up the constitutional argument, the article first outlines why taping is needed despite the elaborate rules that now govern interrogation. Put simply, the reasoning is as follows: the Miranda regime has failed, voluntariness should once again be the focal point of interrogation regulation, and taping …
Peeping Techno-Toms And The Fourth Amendment: Seeing Through Kyllo's Rules Governing Technological Surveillance, Christopher Slobogin
Peeping Techno-Toms And The Fourth Amendment: Seeing Through Kyllo's Rules Governing Technological Surveillance, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article suggests that the Supreme Court's decision in Kyllo v. United States may not be as protective of the home as it first appears. Kyllo held that use of a thermal imager to detect heat sources inside the home is a fourth amendment search, requiring a warrant and probable cause. But it also held that use of technology that is in "general public use" or that only discovers what a naked eye observer could see from a public vantage point is not a search, even when the location viewed is the interior of the home. This article shows that …
Public Privacy: Camera Surveillance Of Public Places And The Right To Anonymity, Christopher Slobogin
Public Privacy: Camera Surveillance Of Public Places And The Right To Anonymity, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age. Based on an …