Privacy Law Commons^™

The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele

Faculty Publications

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But …

Kermit Gosnell’S Babies: Abortion, Infanticide And Looking Beyond The Masks Of The Law, Richard F. Duncan

Nebraska College of Law: Faculty Publications

If, as Laurence Tribe has observed, “all law tells a story,” this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013. As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,” and therefore they are stories that must be told time and again, until we get …

Environmental Privacy, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article looks to nuisance doctrine, surveillance under environmental statutes, and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience, to date, balancing the need for environmental information with privacy. Section A analyzes common law nuisance and its relationship to individual privacy concerns and concludes that the law affords little *7 value to or protection of privacy in the context of at least one type of environmental externality -- conduct that gives rise to a common law nuisance. Recognizing that most environmentally significant individual behaviors do not constitute a …

Spying Inc., Danielle Keats Citron

Faculty Scholarship

The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s calls, texts, snap chats, photos, calendar updates, and movements. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners.

Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, …

Reforming The Law Of Reputation, Frank A. Pasquale

Faculty Scholarship

Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.

As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to …

Privacy, Autonomy, And Internet Platforms, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Un-Territoriality Of Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

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

Articles

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

Articles

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 …

The First Amendment And The Rpas, Caren M. Morrison

Faculty Publications By Year

No abstract provided.

The Regulation Of The Recreational Use Of “Drones” For Aerial Photography And Videography: Comparing Singapore’S Unmanned Aircraft Act With Other Legislation, Siyuan Chen

Research Collection Yong Pung How School Of Law

In the last few years, there has been a dramatic increase in the use of remote-controlled copters or “drones” by recreational users to capture aerial photographs and videos on an unprecedented scale. The convergence of cutting-edge technological developments in gyroscopic gimbals, long-range wireless transmissions, GPS-enabled stabilisation and flightpath-preprogramming, first-person-views, and compact digital imaging has led to the proliferation of these camera-carrying devices that even hobbyists can pilot with reasonable safety. However, there has been a consistent stream of public concern relating to issues of safety, privacy, and disruption of commercial interests. Lost in the paranoid cacophony is a question that …

Why The State Cannot “Abolish Marriage” A Partial Defense Of Legal Marriage Based On The Structure Of Intimate Duties, Gregg Strauss

Faculty Scholarship

Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question “no” and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate status norms and has legitimate reasons to retain an intimate status like marriage.

The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and …

Can Americans Resist Surveillance?, Ryan Calo

Articles

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

Articles

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 …

Unfair And Deceptive Robots, Woodrow Hartzog

Faculty Scholarship

Robots, like household helpers, personal digital assistants, automated cars, and personal drones are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety and finances. Robots also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

The thesis of the Article is that the FTC’s grant of authority and …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Corporate Avatars And The Erosion Of The Populist Fourth Amendment, Avidan Cover

Faculty Publications

The current state of Fourth Amendment jurisprudence leaves it to technology corporations to challenge court orders, subpoenas, and requests by the government for individual users’ information. The third-party doctrine denies people a reasonable expectation of privacy in data they transmit through telecommunications and Internet service providers. Third-party corporations become, by default, the people’s corporate avatars. Corporate avatars, however, do a poor job of representing individuals’ interests. Moreover, vesting the Fourth Amendment’s government-oversight functions in corporations fails to cohere with the Bill of Rights’ populist history and the Framers’ distrust of corporations.

This article examines how the third-party doctrine proves unsupportable …

Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, David Thaw, Christopher Borchert, Fernando Pinguelo

Articles

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine — a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties — Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private …

Law As An Ally Or Enemy In The War On Cyberbullying: Exploring The Contested Terrain Of Privacy And Other Legal Concepts In The Age Of Technology And Social Media, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among …

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

Articles

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 …

Reducing Secrecy: Balancing Legitimate Government Interests With Public Accountability, Nadine Strossen

Articles & Chapters

No abstract provided.

The Scope And Potential Of Ftc Data Protection, Woodrow Hartzog, Daniel J. Solove

Faculty Scholarship

For more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?

In this Article, we address the issue of the scope of FTC authority in the areas of …

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

All Faculty Scholarship

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

The Data Protection Credibility Crisis, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

Could Data Broker Information Threaten Physician Prescribing And Professional Behavior?, Marco D. Huesch, Michael K. Ong, Barak D. Richman

Faculty Scholarship

Privacy is threatened by the extent of data collected and sold by consumer data brokers. Physicians, as individual consumers, leave a ‘data trail’ in the offline (e.g. through traditional shopping) and online worlds (e.g. through online purchases and use of social media). Such data could easily and legally be used without a physician’s knowledge or consent to influence prescribing practices or other physician professional behavior. We sought to determine the extent to which such consumer data was available on a sample of more than 3,000 physicians, healthcare faculty and healthcare system staff at one university’s health units. Using just work …

Tightrope Act, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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

Articles

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 …

From Anonymity To Identification, A. Michael Froomkin

Articles

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 …

The Social Origins Of The Personality Torts, Samantha Barbas

Journal Articles

No abstract provided.

Surveillance As Loss Of Obscurity, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Everyone seems concerned about government surveillance, yet we have a hard time agreeing when and why it is a problem and what we should do about it. When is surveillance in public unjustified? Does metadata raise privacy concerns? Should encrypted devices have a backdoor for law enforcement officials? Despite increased attention, surveillance jurisprudence and theory still struggle for coherence. A common thread for modern surveillance problems has been difficult to find.

In this article we argue that the concept of ‘obscurity,’ which deals with the transaction costs involved in finding or understanding information, is the key to understanding and uniting …