Privacy Law Commons^™

Hiding Evidence From The Boss: Attorney-Client Privilege And Company Computers, Kelcey Nichols

Washington Journal of Law, Technology & Arts

Recent court decisions in In re Asia Global Crossing, Ltd., People v. Jiang, and Curto v. Medical World Communications have held that attorney-client privilege can protect certain information located on an employer-issued computer from disclosure if the employee had a reasonable expectation of privacy. This Article provides a brief background on attorney-client privilege and explores the factors courts consider when determining whether an employee has this reasonable expectation. These factors include the scope of employer monitoring, the employer-employee agreement pertaining to the computer, the presence of password-protection, the location of the computer, and the relevancy of the evidence …

To Serve And Protect: Do Businesses Have A Legal Duty To Protect Collections Of Personal Information?, Derek A. Bishop

Washington Journal of Law, Technology & Arts

Commercial, governmental, and nonprofit organizations are more frequently reporting instances of data security breaches. This has, in turn, raised fears of identity theft. In some limited instances, companies that maintain large amounts of personal information—such as credit reporting agencies—have been subject to statutory duties to protect that personal information. In some instances, such legislation has also permitted a private cause of action for breach of these duties. Legislatures have expanded these statutes to encompass, at least to a limited degree, all business entities that collect personal information. Recent precedent indicates that courts may follow this trend by declaring security breaches …

Brief For Professors Of Electronic Privacy Law And Internet Law As Amici Curiae Supporting The Appellee And Urging Affirmance, Patricia L. Bellia, Susan Freiwald

Court Briefs

No. 06-4092
Steven Warshak v. United States of America

On appeal from the United States District Court for the Southern District of Ohio at Cincinnati

From the Summary of Argument

Electronic mail (“e-mail’) has become an essential medium of communication and assumed a vital role in our lives. The contents of our e-mail accounts reveal extensive and detailed information about our interests, our views, and our actions. Yet, the Government in this case claims the right to obtain the entirety of our personal e-mail accounts from our service providers, without first establishing probable cause or providing us notice, so long …

Protecting Your Personal Privacy: A Self-Help Guide For Judges And Their Families (2006), Chicago Bar Association’S Privacy Task Force, John Marshall Law School Center For Information Technology & Privacy Law, Leslie Ann Reis

Faculty White Papers

“I believe that the Internet is a brave new world in the matter of judicial security.” – Testimony of Joan H. Lefkow, United States District Judge, before the Judiciary Committee of the United States Senate (May 18, 2005).

Your personal information may be no farther away than a mouse-click... Your name, locations of your home and workplace, your phone number and email address, details of your family members, your political leanings and many more pieces of information are available through a wide array of public and private sources. But, this is nothing new. Some personal information about you has always …

Right Of Publicity: The Right Of Publicity Fair Use Doctrine - Adopting A Better Standard, Andrew Koo

Buffalo Intellectual Property Law Journal

No abstract provided.

Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah

Michigan Telecommunications & Technology Law Review

By putting themselves out in front as the victims, the Recording Industry Association of America (RIAA) helped reshape the governing norms of the times, and as a result, people viewed the act of file-sharing differently. By forcing people to see music downloading as a form of theft, the RIAA was quite successful in deterring it. In the process, they also proposed a radical view of theft that changes our basic economic understandings of the action[...] This paper argues that the RIAA's model for deterring music theft could be successfully used to deter many other forms of computer theft, and, specifically, …

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 …

Step In The Wrong Direction: The Impact Of The Legislative Protection Of Technological Protection Measures On Fair Dealing And Freedom Of Expression, Graham Reynolds

Canadian Journal of Law and Technology

This paper will investigate whether legislation granting protection to TPMs infringes the freedom of expression (s. 2(b)) guarantee as contained in the Canadian Charter of Rights and Freedoms. This paper will proceed in five parts. Part I will discuss Bill C-60 and the legislative protection of TPMs in Canada. Part II will discuss the effect of TPMs on fair dealing. Part III will analyze whether the freedom of expression guarantee can be used to challenge provisions in the Copyright Act. Part IV will evaluate whether amendments to the Copyright Act granting protection to TPMs are consistent with the freedom of …

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Electronic Trespass In Canada: The Protection Of Private Property On The Internet, James Macdonald

Canadian Journal of Law and Technology

This paper argues that Canadian courts can, and should, adopt electronic trespass as a viable cause of action for the protection of property rights on the Internet. Of course, this conclusion presupposes that property rights in fact exist on the Internet. While American courts have accepted the existence of property rights on the Internet without any real controversy, a significant body of criticism has developed around American jurisprudence. Part III examines the critiques levelled against the assumption of property rights inherent in electronic trespass, and argues that there are property rights that need to be protected on the Internet. Part …

Nanotechnology And The United States National Plan For Research And Development In Support Of Critical Infrastructure Protection, Lisa Campbell

Canadian Journal of Law and Technology

In an effort to predict and avert threats to national security, governments in general, and that of the United States in particular, have devoted considerable resources to developing technological systems that gather information about individuals. In the past five years, the U.S. government has collected information about the movement of individuals across and within its national borders from various sources, including border security stations, law enforcement officials, and immigration authorities. Until recently, it seemed impossible for the U.S. government to draw useful analyses from all of the data it is collecting. The sheer volume and complexity of the information made …

The Crtc's Enforcement Of Canada's Broadcast Legislation: 'Concern', 'Serious Concern' And 'Grave Concern', Monica Auer

Canadian Journal of Law and Technology

This paper describes results from a quantitative study of the enforcement by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) over the last several decades of Canada’s broadcasting legislation and its own regulations. Established by Parliament in 1968, the CRTC is a quasi-judicial regulatory agency that administers Canada’s Broad- casting Act, 1991 as well as the nation’s telecommunications legislation. Parliament has accorded the CRTC a broad range of discretionary powers over broadcast licensees, from granting, denying or revoking licences, to issuing mandatory orders. It is one of many federal regulatory agencies that administer and enforce Parliament’s legislation.

Intellectual Property: The Law In Canada By Daniel Gervais & Elizabeth F. Judge (Toronto: Thomson Carswell, 2006), David Lametti

Canadian Journal of Law and Technology

No abstract provided.

What We Talk About When We Talk About Workplace Privacy, Anita Bernstein

Faculty Scholarship

No abstract provided.

No Direction Home: Will The Law Keep Pace With Human Tracking Technology To Protect Individual Privacy And Stop Geoslavery, William A. Herbert

Publications and Research

Increasingly, public and private employers are utilizing human tracking devices to monitor employee movement and conduct. Due to the propensity of American labor law to give greater weight toemployer property interests over most employee privacy expectations, there are currently few limitations on the use of human tracking in employment. The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase “geoslavery” to describe the abusive use of such technology underscores its power. This article examines the use of such …

Fixing Fisa For Long War: Regulating Warrantless Surveillance In The Age Of Terrorism, Adam Burton

The University of New Hampshire Law Review

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in …

Compliance With California Privacy Laws: Federal Law Also Provides Guidance To Businesses Nationwide, Anthony D. Milewski Jr.

Washington Journal of Law, Technology & Arts

Over the past several years, personal information has been lost or stolen as a result of a series of high profile security breaches. In January 2006, the U.S. Federal Trade Commission announced that ChoicePoint will be required to pay $15 million in fines and penalties for a high profile security breach that occurred in 2005. The ChoicePoint breach and similar events have spurred an explosion of state and federal privacy legislation. In particular, the State of California has taken the lead by enacting the strictest disclosure and security procedure requirements in the country. The implications of California’s new laws can …

Producers And Consumers In Eu E-Commerce Law, Banu Sit

Canadian Journal of Law and Technology

Rapid growth of technology in the last decades has given rise to electronic commerce (e-commerce) as a new mode of commerce. This new commerce environment has many characteristics that affect commercial relationships and parties. Of these characteristics, global and borderless commercial activity and the intangible nature of communication can be singled out.

From a legal perspective, e-commerce has developed new modes, of contract formation, performance of contracts for intangible goods, as well as payment. In this new borderless and transient sphere, certain interests of parties involved in commercial activities as buyers or sellers are in need of protection. In particular, …

It Waste Management In Canada: From Cost Recovery To Resource Conservation?, Meinhard Doelle

Canadian Journal of Law and Technology

The volume, composition and management of solid waste generated by households, governments, the commercial sector, and industry have all changed dramatically over the past century. Household waste contained mainly organic material a hundred years ago. Today, both residential and commercial waste is a complex mix of organics, plastics, paper products, metals and a variety of toxic material. Historically, individual households looked after their own waste, through efforts such as composting and burning. Over the past century, with significant increases in volume of waste generated, municipalities have taken over primary responsibility for solid waste management, initially mainly for aesthetic and sanitary …

Shooting For The Stars: A Call For Federal Legislation To Protect Celebrities' Privacy Rights, Jennifer R. Scharf

Buffalo Intellectual Property Law Journal

No abstract provided.

Ests Under Canadian Patent Law: Useful Or Not?, Natalie C. Bellefeuille

Canadian Journal of Law and Technology

The following discussion will examine the utility requirement for patentability in the context of EST patents. Part I will provide background information regarding the utility requirement under patent law and will explain why it has been difficult to apply to ESTs. Part II will briefly examine how other jurisdictions, in particular the United States, have addressed the difficul- ties associated with applying the current utility require- ment to biological materials, in particular ESTs. Part III will look at how Canadian courts have interpreted and applied the utility requirement for patentability, and will suggest that ESTs have sufficient value to the …

Personal Medical Information: Privacy Or Personal Data Protection?, Wilhelm Peekhaus

Canadian Journal of Law and Technology

Some of the existing literature concerning the privacy of health information seems to suggest that medical information has a particularly special nature; either through its oft-cited association with dignity or the need for its ‘‘unobstructed’’ use by health care practitioners for a variety of reasons. It is against such a backdrop that this paper will review and compare a number of legislative mechanisms that have been designed to meet the challenge of safeguarding the privacy of personal information without completely hindering the continued flow of information required by economic and health care systems. An attempt will be made to situate …

E-Commerce Legislation And Materials In Canada: Lois Sur Le Commerce Électronique Au Canada Et Documents Connexes By Sunny Handa, Claude Marseille & Martin Sheehan (Markham, Ont.: Lexisnexis Butterworths, 2005), John D. Gregory

Canadian Journal of Law and Technology

This hefty volume is a useful compendium of the basic source materials for the law of electronic commerce in Canada. It offers the text of all the general-purpose legislation that removes legal barriers to the use of electronic communications, for all jurisdictions in the country. It then takes a dozen related areas of law, from domain names to taxation, from competition law to consumer protection, from security to standards, and offers a quick overview and the key documents applicable to each. In each case the commentary is in English then in French, and where the texts are available in both …

Milky Way And Andromeda: Privacy, Confidentiality And Freedom Of Expression, George S. S. Wei

Research Collection Yong Pung How School Of Law

This article examines the extent to which the law of confidence protects private personal information. In the UK, much of the impetus for greater protection comes from the European Convention on the Protection of Human Rights and Fundamental Freedoms. How privacy and freedom of expression are to be balanced either within the law of confidence or through the development of a new tort of privacy is a question that has given rise to much discussion in the courts and elsewhere. Developments in this area are the focus of this article together with the issue as to whether similar developments might …

A Feeling Of Unease About Privacy Law, Ann Bartow

Law Faculty Scholarship

This essay responds to Daniel Solove's recent article, A Taxonomy of Privacy. I have read many of Daniel Solove's privacy-related writings, and he has made many important scholarly contributions to the field. As with his previous works about privacy and the law, it is an interesting and substantive piece of work. Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner. Most commentators agree that compromising a person's privacy will chill certain behaviors and change others, but a powerful list of the reasons why …

The Protection Of Maps And Spatial Databases In Europe And The United States By Copyright And The Sui Generis Right, 24 J. Marshall J. Computer & Info. L. 195 (2006), Katleen Janssen, Jos Dumortier

UIC John Marshall Journal of Information Technology & Privacy Law

Spatial data and applications play an ever-increasing part in our economy and in our society in general, but the protection of spatial databases by intellectual property rights seems to be a challenge because the Internet and information technology have caused a considerable increase in the copying of data, maps, route descriptions, hiking trails, etc. The illegal copying of spatial data, however, has caused the data producers to turn to several means of protection, such as intellectual property legislation, unfair competition, confidentiality and privacy. This paper begins by determining what is meant by spatial data. Thereafter, the paper reflects on the …

Provisional Relief In Transnational Litigation In The Internet Era: What Is In The Us Best Interest?, 24 J. Marshall J. Computer & Info. L. 263 (2006), Panagiota Kelali

UIC John Marshall Journal of Information Technology & Privacy Law

Using the hypothetical of a college student victimized by a fraudulent website, this comment addresses the issue of Internet fraud. In the example presented, the perpetrators are Greek nationals located in Greece. Focusing on the intangible and international nature of the Internet, the comment addresses the complications surrounding litigating an Internet fraud case. The issues discussed include a determination of the forum where the suit should be brought, preservation of the status quo pending determination of the dispute, and the status of a transnational cooperation on the issue of recognition and enforcement of judgments. The comment presents the options available …

Transsexuals And The Family Medical Leave Act, 24 J. Marshall J. Computer & Info. L. 315 (2006), Charles Thomas Little

UIC John Marshall Journal of Information Technology & Privacy Law

This article examines the implications for transsexuals seeking sexual reassignment surgery (“SRS”) under the Family Medical Leave Act (“FMLA”). Currently, the scant case law pertaining to the FMLA suggests that the statutes and regulations will likely fail to provide even minimal protection to transsexuals. If applied literally, the FMLA may present barriers to transsexuals seeking SRS in opposition to the true purpose behind the Act, which is to allow employees the opportunity to take reasonable leave from work by mandating more medical leave than the employers might otherwise be willing to grant for things such as the adoption or birth …

Keeping The Boss Out Of The Bedroom: California's Constitutional Right Of Privacy As A Limitation On Private Employers' Regulation Of Employees' Off-Duty Intimate Association, Erich Shiners

McGeorge Law Review

No abstract provided.

Liability For Botnet Attacks, Jennifer A. Chandler

Canadian Journal of Law and Technology

This paper will consider the possibility of using tort liability to address cyber insecurity. In previous work, I have proposed a hypothetical lawsuit by the victim of a DDoS attack against the vendor of unreasonably insecure software, the flaws of which are exploited to create the DDoS attack army. Indeed, software vendors are facing increasing public disapproval for their contributions to cyber insecurity. However, not all DDoS attack armies are assembled by exploiting flaws in software. Computers are also infected when users voluntarily open infected email attachments or download infected files from file-sharing networks. Accordingly, the cyber insecurity resulting from …