Privacy Law Commons^™

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen Henderson

Other Faculty Publications

An invited essay for Constitution Day, also available here: http://blogs.law.widener.edu/constitution2013/2013-essay-authors/stephen-henderson/It addresses the national security surveillance disclosed by Edward Snowden and others, and asks whether a fundamental shift would be prudent in the era of Big Data.

Tor Exit Nodes: Legal And Policy Considerations, Sarah Campbell Eagle, Abigail St. Hilaire, Kelly Sherwood

Technology Law and Public Policy Clinic

Anonymity Networks

The Internet is a constant companion to people the world over and as technology improves it is becoming more accessible every day. With the amount of communication that occurs online, it was only a matter of time before anonymity became an important topic of discussion. Several so-called “anonymity networks” have been developed to facilitate anonymous communication by the citizens of the web. Because the use of these networks is already so widespread, the time is ripe for a discussion of their merits and potential government responses to this phenomenon. An anonymity network “enables users to access the Web …

Do-Not-Track As Default, Joshua A.T. Fairfield

Northwestern Journal of Technology and Intellectual Property

Do-Not-Track is a developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature.

The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This …

The Appliance Of Scopic Clause In Salvage Projects : A Salvage Case Study Under The Scopic Clause, Peng Wang

Maritime Safety & Environment Management Dissertations (Dalian)

No abstract provided.

It’S Raining Katz And Jones: The Implications Of United States V. Jones–A Case Of Sound And Fury, Jace C. Gatewood

Pace Law Review

This Article discusses the implications of Jones in light of emerging technology capable of duplicating the monitoring undertaken in Jones with the same degree of intrusiveness attributable to GPS tracking devices, but without depending on any physical invasion of property. This Article also discusses how the pervasive use of this emerging technology may reshape reasonable expectations of privacy concerning an individual’s public movements, making it all the more difficult to apply the Fourth Amendment constitutional tests outlined in Jones. In this regard, this Article explores recent trends in electronic tracking, surveillance, and other investigative methods that have raised privacy concerns, …

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

Where's Waldo?: Geolocation, Mobile Apps, And Privacy, Lori Andrews

All Faculty Scholarship

No abstract provided.

The Polysemy Of Privacy, Ronald J. Krotoszynski Jr.

Indiana Law Journal

“The Polysemy of Privacy” considers the highly protean nature of the concept of “privacy,” which extends to myriad disparate legal interests, including nondisclosure, generalized autonomy interests, and even human dignity. For a concept of such central importance to many systems of protecting fundamental rights, its precise contours are surprisingly ill defined. This lack of determinate meaning is not limited to the concept of privacy in the United States; virtually all legal systems that utilize privacy (or its first cousin, “dignity”) have difficulty reducing the concept into specific, carefully delineated legal interests. In some respects, privacy means everything—and nothing—at the same …

Fighting Cyber-Crime After United States V. Jones, David Gray, Danielle K. Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

Regulatory Issues Concerning New Media Alternatives To Television, Michael Rimock

Canadian Journal of Law and Technology

This article will begin by discussing the significance of over-the-top (OTT) video services in Canada and briefly outline the CRTC’s recent efforts and findings in relation to new media trends. It will then describe the problems with the current regulatory framework and some of the proposed solutions. While some have argued that regulating OTT services like Netflix would level the playing field, I will argue that encouraging competition and decreasing some of the onerous regulations that are currently imposed on Canadian broadcasters would be the best solution since it would benefit both consumers and Canadian corporations.

Patent-Backed Securization For Innovation And Economic Growth In The Life Sciences: A Proposal For Incremental Securities Law Reform, Grace Sweeney

Canadian Journal of Law and Technology

In this section, the historical balance struck by securities law between conservatism and innovation was considered in the context of a shifting economic landscape.

In Section II, the life sciences sector will be chosen to illustrate the current barriers impeding capital flow to high-value enterprise, resulting in decreased innovation and economic growth. These include the existence of “ever greening”, non-practicing entities, patent thickets, and onerous transaction costs on upstream patent holders with limited competency.

In Section III, the tool of intangible asset finance will be introduced as a means of harnessing the value of intellectual property assets, and leveraging them …

Obscurity By Design, Woodrow Hartzog, Frederic Stutzman

Washington Law Review

Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have left the full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet—social interaction. This Article posits that privacy-protection strategies such as “Privacy by Design” face unique challenges with regard to social software and social technology due to their interactional nature. This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the principles of …

Proof And Progress: Coping With The Law Of Evidence In A Technological Age, David M. Paciocco

Canadian Journal of Law and Technology

This article outlines those rules of evidence that are most likely to be called upon to fit new technologies. It identifies some of the challenges that are presented, and identifies modest techniques or suggestions for coping. Those suggestions include taking the kind of relaxed view as to when expert evidence is being offered illustrated by the Ontario Court of Appeal in R. v. Hamilton; taking a functional approach to judicial notice; ensuring that authentication and the “best evidence” rule for electronic records are not applied in a highly technical fashion; understanding the law of hearsay and remaining familiar with …

Social Media: The Law Simply Stated, Steve Coughlan, Robert J. Currie

Canadian Journal of Law and Technology

It is a challenge to simply state the law about social media, because there is no such thing as “social media law.” Rather, the law bumps up against social media in many ways. In some cases, existing law can be seamlessly applied to new technologies and means of interaction. In other cases, entirely new paradigms will likely need to be adopted to handle new challenges. Many other cases will fall somewhere in between.

Our goal in this Law Simply Stated is to provide some background on the nature of social media themselves, and then to state the basic law in …

Implementing Technology In The Justice Sector: A Canadian Perspective, Jane Bailey, Jacquelyn Burkell

Canadian Journal of Law and Technology

Despite the many technological advances that could benefit the court system, the use of computers and network technology to facilitate court procedures is still in its infancy, and court procedures largely remain attached to paper documents and to the physical presence of the parties at all stages. More and more research is focusing on the use of technology to make the legal system more efficient and to reduce excessive legal costs and delays. The goal of this exploratory research project is to examine the experience of justice sector technology implementation from the perspective of individuals involved first-hand in the implementation …

Faa V. Cooper: Bombarding The Privacy Act With The "Canon Of Sovereign Immunity", S. Jacob Carroll

Mercer Law Review

Privacy is a word we hear frequently in today's technologically advanced society. From Google Maps documenting every street in the nation to smartphones sharing locations automatically, privacy concerns abound. In fact, a recent Consumer Reports study found that over seventy percent of respondents said they were very concerned about the sharing of their personal information.' Nevertheless, these worries seem to have fallen on deaf ears as displayed by the United States Supreme Court's recent decision, Federal Aviation Administration v. Cooper. The Court in Cooper ruled that although sharing confidential records without a citizen's permission violated the Privacy Act of …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

The Right Of Privacy In Arkansas: A Progressive State, J. Lyn Entrikin

University of Arkansas at Little Rock Law Review

No abstract provided.

The Fight To Frame Privacy, Woodrow Hartzog

Michigan Law Review

In his important new book, Nothing to Hide: The False Tradeoff Between Privacy and Security, Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. Solove understands that privacy is far too vital to our freedom and democracy to accept its inevitable demise. The central thesis of this Review is that Solove's polemic is a strong and desperately needed collection of frames that counterbalances the "nothing …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David Gray, Danielle K. Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

Drawing The Line Between Competing Interests: Strengthening Online Data Privacy Protection In An Increasingly Networked World, Lori Chiu

San Diego International Law Journal

This article seeks to elucidate these issues and provide a roadmap for the U.S. government to create unified federal laws to provide the private sector with specific protocols regarding use and dissemination of consumer personal information. First, this article will provide an explanation of the U.S.’s current sector-by-sector approach to regulating personally identifying information and will provide a case study of the Federal Trade Commission’s (“FTC”) enforcement action against a social networking site in 2011 as one example of the FTC’s recent efforts at regulating online privacy. Next, this article will analyze the U.S.’s current challenge of judicial enforcement of …

Walking A Thin Blue Line: Balancing The Citizen's Right To Record Police Officers Against Officer Privacy, Rebecca G. Van Tassell

BYU Law Review

No abstract provided.

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.

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy

Michigan Law Review

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People's Republic Of China, Ann Bartow

Law Faculty Scholarship

This essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.” Monitoring and censoring communications, especially via “one to many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Keats Citron, David C. Gray

Faculty Scholarship

In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Privacy, Antitrust, And Power, Frank Pasquale

Faculty Scholarship

When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level.

To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …

The Future Of Hipaa In The Cloud, Frank Pasquale, Tara Adams Ragone

Faculty Scholarship

This white paper examines how cloud computing generates new privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values …

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …