Privacy Law Commons^™

Yes, I Destroyed The Evidence - Sue Me? Intentional Spoliation Of Evidence In Illinois, 27 J. Marshall J. Computer & Info. L. 235 (2009), Michael A. Zuckerman

UIC John Marshall Journal of Information Technology & Privacy Law

Many Illinois litigators have encountered spoliation of evidence, which is the loss, destruction, or alteration of evidence. Examples of spoliation are seemingly endless and include the failure to preserve the scene of a train derailment, the accidental destruction of evidence on a lawyer’s desk by a janitor, the loss of a heater that exploded, the removal of wires from a car that caught on fire, the loss and alteration of medical equipment, and the intentional erasing of a computer image relevant to a copyright lawsuit. To combat spoliation, Illinois and many other states have developed common law and statutory methods …

Extending The Exclusionary Rule: Enforcing Data Quality In National Security Databases And Watch Lists, 27 J. Marshall J. Computer & Info. L. 257 (2009), Christine M. Whalley

UIC John Marshall Journal of Information Technology & Privacy Law

Since its inception, the exclusionary rule has been aimed at deterring misconduct by police officers and law enforcement agents. It is widely believed to deter deliberate, reckless, grossly, or systemic negligent conduct by law enforcement agents. Increased reliance by law enforcement agencies and their agents on expansive, interconnected information suggests that the exclusionary rule needs to be expanded beyond just the acts of the officers and agents and be applied to the agency itself where there is evidence that poor data quality standards produced the reckless or negligent conduct. When so much of our liberty rests on the quality of …

The Computer Fraud And Abuse Act: Reassessing The Damage Requirement, 27 J. Marshall J. Computer & Info. L. 279 (2009), Matthew Andris

UIC John Marshall Journal of Information Technology & Privacy Law

This comment explores whether a civil plaintiff needs to claim actual damage to a protected computer to recover against a defendant under the CFAA. Several courts have noted that there is little case law regarding damages, and the case law that exists does not help define the reach of damages. Currently, courts are split as to whether a computer system needs to have actual physical damage in order for recovery under the CFAA. Additionally, courts have not adequately addressed how to assess damages, including whether damages may be aggregated across multiple computer systems. The Third, Fifth, and Ninth Circuit Courts …

Two Notions Of Privacy Online, Avner Levin, Patricia S. Abril

Vanderbilt Journal of Entertainment & Technology Law

Users of social networking websites tend to disclose much personal information online yet seem to retain some form of an expectation of privacy. Is this expectation of privacy always unreasonable? How do users of online social networks define their expectations of privacy online?

These questions were the impetus behind an empirical study, the findings of which are presented in this Article. The project, simultaneously conducted in Canada, at Ryerson University, and in the United States, at the University of Miami, consisted of a survey regarding personal information protection and expectations of privacy on online social networks (OSNs). Approximately 2,500 young …

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

David Doe V. Goliath, Inc.: Judicial Ferment In 2009 For Business Plaintiffs Seeking The Identities Of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1 (2009), Clay Calvert, Kayla Gutierrez, Karla D. Kennedy, Kara Carnley Murrhee

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Lidsky

Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Privacy And The New Virtualism, Jonathon Penney

Articles, Book Chapters, & Popular Press

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Comments: Privacy At Risk: Patients Use New Web Products To Store And Share Personal Health Records, Juliana Bell

University of Baltimore Law Review

No abstract provided.

The Facebook Frontier: Responding To The Changing Face Of Privacy On The Internet, Samantha L. Millier

Kentucky Law Journal

No abstract provided.

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

Entry And Service Of Protective Orders In Virginia: Are You Really Protected, Susheela Varky

Richmond Public Interest Law Review

According to the Virginia Department of State Police, there has been a legislative effort in 2008 and 2009 over the past two years to ensure that essential data from protective orders1 is entered into the Virginia Criminal Information Network ("VCIN") immediately upon the order's issuance. While data entry may seem like a dull topic, the following story highlights the dire significance of this seemingly mundane task.

Changing Tides: A Lesser Expectation Of Privacy In A Post 9/11 World, Derek M. Alphran

Richmond Public Interest Law Review

In sum, the Court has in recent years balanced the degree of government intrusion of the individual or place searched against the government's need for the search. This article addresses some of the questions posed by the evolution of the Fourth Amendment doctrine in light of terrorist concerns since 9/11. Part II will address the history of Fourth Amendment jurisprudence, from the Boyd Era of property protection and the use of general warrants to discover evidence of crime, to Olmstead and the development of the right of privacy under the Fourth Amendment. Part III will address the modern test under …

Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino

Faculty Articles

Clinicians and scientists use functional magnetic resonance imaging (fMRI) to map sensory, motor, and cognitive function and to study the neural correlates of a range of physical and mental conditions, behaviors, characteristics, and preferences. Due to its move outside the clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being examined within the overlapping fields of neuroethics and neurolaw. The early neuroethics and neurolaw scholarship focused heavily on the implications of fMRI for evidence law, criminal law, criminal procedure, and constitutional law. Little attention has been paid, however, to the implications of advances …

Conflict Of Law And Surreptitious Taping Of Telephone Conversations, Carol M. Bast

NYLS Law Review

No abstract provided.

Tuck-It-Away Associates, L.P. V. Empire State Development Corp., Kelly D. Fisher

NYLS Law Review

No abstract provided.

Entry And Service Of Protective Orders In Virginia: Are You Really Protected, Susheela Varky

Richmond Journal of Law and the Public Interest

According to the Virginia Department of State Police, there has been a legislative effort in 2008 and 2009 over the past two years to ensure that essential data from protective orders1 is entered into the Virginia Criminal Information Network ("VCIN") immediately upon the order's issuance. While data entry may seem like a dull topic, the following story highlights the dire significance of this seemingly mundane task.

Changing Tides: A Lesser Expectation Of Privacy In A Post 9/11 World, Derek M. Alphran

Richmond Journal of Law and the Public Interest

In sum, the Court has in recent years balanced the degree of government intrusion of the individual or place searched against the government's need for the search. This article addresses some of the questions posed by the evolution of the Fourth Amendment doctrine in light of terrorist concerns since 9/11. Part II will address the history of Fourth Amendment jurisprudence, from the Boyd Era of property protection and the use of general warrants to discover evidence of crime, to Olmstead and the development of the right of privacy under the Fourth Amendment. Part III will address the modern test under …

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 …

Private Norms And Public Spaces, Nicole Stelle Garnett

Journal Articles

This Essay explores the role of private norms in the allocation of urban public spaces as well as local governments' efforts to enforce these norms. The Essay was prepared for the 2008 Brigham-Kanner Property Rights Conference, William and Mary School of Law, as a tribute to Robert Ellickson. community policing, informal norms

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Dying To Know: A Demand For Genuine Public Access To Clinical Trial Results Data, Christine Galbraith Davik

Faculty Publications

Four years ago at the age of 34, I heard the awful words "I'm sorry, but you have breast cancer" coming from my doctor. After the initial shock of the diagnosis wore off, I like many others who have faced life-threatening diseases began to work with a team of physicians to develop an appropriate treatment plan, which included contemplating enrollment in a clinical trial. Quite unexpectedly, my position as an intellectual property professor whose scholarship focuses primarily on information control, my role as a member of my university's Institutional Review Board that oversees studies involving human subjects, and my newly …

Cybercrimes Vs. Cyberliberties, Nadine Strossen

Articles & Chapters

Cybercrimes vs. Cyberliberties, Chapter 8 in Internet Policy and Economics: Challenges and Perspectives 2nd ed. at 110-127 ( W.H. Lehr & L.M. Pupillo, eds. Springer, 2009).

Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Articles & Chapters

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of …

How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton

Faculty Articles

This article seeks for the very first time to inform that debate with a notion of property as an essential aspect of human identity in a "mash-up of sorts that might be called Fourth Amendment jurisprudence meets the Radinesque Property of Personhood. Using an expanded version of the notion of property developed by Professor Margaret Radin in her pioneering work Property and Personhood, the Fourth Amendment must contend with the social reality that some aspects of "ownership" or entitlement to property, and some level of vindication of those interests, are essential to the formation and viability of complete human beings. …

Are "Better" Security Breach Notification Laws Possible?, Jane K. Winn

Articles

This Article will evaluate the provisions of California's pioneering security breach notification law (SBNL) in light of "better regulation" or "smart regulation" criteria in order to highlight the costs of taking a narrowly focused, piecemeal approach and the benefits of taking a more comprehensive perspective to the problems of identity theft and information security. Just as the basic structure of SBNLs was borrowed from environmental law, this Article will borrow from decades of analysis of the impact of environmental regulation to evaluate the likely impact of SBNLs.

Just as environmental laws can be used to reduce externalities created through the …