Privacy Law Commons^™

Indecent Exposure: Genes Are More Than A Brand Name Label In The Dna Database Debate, Jessica D. Gabel

University of Baltimore Law Review

No abstract provided.

Why Dna Databasing Is Good For Maryland — A Dna Analyst's Perspective, Rana Santos

University of Baltimore Law Review

No abstract provided.

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Utah OnLaw: The Utah Law Review Online Supplement

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

Voir Dire In The #Lol Society: Jury Selection Needs Drastic Updates To Remain Relevant In The Digital Age, 47 J. Marshall L. Rev. 459 (2013), Zachary Mesenbourg

UIC Law Review

No abstract provided.

The Evolving Fourth Amendment: United States V. Jones, The Information Cloud, And The Right To Exclude, Ber-An Pan

Maryland Law Review

No abstract provided.

American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson

Faculty Books and Book Chapters

Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

Genetic Privacy & The Fourth Amendment: Unregulated Surreptitious Dna Harvesting, Albert E. Scherr

Georgia Law Review

Genetic privacy and police practices have come to the
fore in the criminal justice system. Case law and stories
in the media document that police are surreptitiously
harvesting the out-of-body DNA of putative suspects.
Some sources even indicate that surreptitious data
banking may also be in its infancy. Surreptitious
harvesting of out-of-body DNA by the police is currently
unregulated by the Fourth Amendment. The few courts
that have addressed the issue find that the police are free
to harvest DNA abandoned by a putative suspect in a
public place. Little in the nascent surreptitious harvesting
case law suggests that surreptitious …

As Seen On Tv: Your Compromising Cameo On National Reality Programming, 12 J. Marshall Rev. Intell. Prop. L. 403 (2013), Ryan Westerman

UIC Review of Intellectual Property Law

The pop-culture phenomenon of reality television has taken over national programming. With the click of a remote, viewers can gain an inside look into the daily lives of celebrity families, toddler pageant queens, wealthy housewives, even pregnant teenagers. Reality television also profiles different professions: repo-men, pawn shop owners, and real estate agents all have television time slots. While it seems everyone is desperate for their fifteen minutes of fame, there are still those who wish to avoid the public spotlight. However, a recent Illinois ruling may make avoiding prime-time attention impossible for certain individuals caught on tape in compromising, and …

The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013), Saby Ghoshray

UIC Review of Intellectual Property Law

The rise of social media means that data about a large number of people is available in public and quasi-public digital locations. Employers, keen on taking advantage of this additional data to decrease the risk associated with an offer of employment, are engaging in “cyber-vetting”—non-consenting social media searches conducted by third parties or the employers themselves. To the extent that current law applies to this practice, the regulation it provides is weak and attacks only part of the problem. Left unchecked, cyber-vetting has the potential to fundamentally alter the scope of prospective employees’ rights. This article surveys the legal and …

The New World Of Mobile Communication: Redefining The Scope Of Warrantless Cell Phone Searches Incident To Arrest, Samuel J.H. Beutler

Vanderbilt Journal of Entertainment & Technology Law

In many jurisdictions, law enforcement officials may conduct a warrantless search of the contents of an arrestee's cell phone incident to an arrest. The judicial precedent for this policy dates back to the early 1990s when courts equated early mobile technology, such as pagers and first generation cell phones, to physical containers capable of storing a limited number of calls or messages. Supreme Court precedent had long permitted the warrantless search of such containers incident to arrest. However, due to advancements in technology, mobile devices, such as smart phones, now have the capacity to hold a larger amount of personal …

"Pets Must Be On A Leash": How U.S. Law (And Industry Practice) Often Undermines And Even Forbids Valuable Privacy Enhancing Technology, A. Michael Froomkin

Articles

No abstract provided.

Corporate Cyber-Censorship: The Problems With Freedom Of Expression Online, Max Rothschild

Canadian Journal of Law and Technology

This article will explore the problem of the applicability of human rights law to the corporate entities that own and enable the operation of the Internet. The focus will be the status of the right to freedom of expression online, and the different possibilities that have been suggested in order to ensure that users have and are able to exercise this right. As the Internet is a communicative tool that allows for an unprecedented global discourse, freedom of expression is naturally of primary importance in the online context.

Prism And Privacy: Will This Change Everything?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Can't Escape From The Memory: Social Media And Public Sector Labor Law, William A. Herbert

Publications and Research

The Web 2.0 communicative revolution is impacting many fields of law, including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. As part of that analysis, it will compare and contrast developments under the National Labor Relations Act, state collective bargaining and tenure laws and the First Amendment concerning social media. Through this comparative analysis, the article will highlight the distinctions and similarities of public sector labor law and their implications for the future.

Global Governance In The Information Age: The Terrorist Finance Tracking Program, Hannah Bloch-Wehba

Faculty Scholarship

Europe has long been deemed "more protective" of privacy than the United States. In the context of transatlantic cooperation in the war on terrorism, divergences in privacy law and policy have become ever more apparent. As has always been the case, the same technologies that pose new and vital privacy issues with regard to personal information and private data are those that are important sources for government actors, including law enforcement and intelligence agencies. Despite the increasing reliance by national agencies on information flowing from other nations, regulation of information transfer, processing and sharing has been achieved largely outside of …

Access Denied: The "Facebook Law" And Illinois' Evolving Workplace Protections, Steven A. Montalto

Public Interest Law Reporter

No abstract provided.

Back To The Future: United States V Jones Resuscitates Property Law Concepts In Fourth Amendment Jurisprudence, Nancy Forster

University of Baltimore Law Review

No abstract provided.

The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green

Faculty Scholarship

This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …

Defining Privacy And Utility In Data Sets, Felix T. Wu

University of Colorado Law Review

Is it possible to release useful data while preserving the privacy of the individuals whose information is in the database? This question has been the subject of considerable controversy, particularly in the wake of well-publicized instances in which researchers showed how to re-identify individuals in supposedly anonymous data. Some have argued that privacy and utility are fundamentally incompatible, while others have suggested that simple steps can be taken to achieve both simultaneously. Both sides have looked to the computer science literature for support. What the existing debate has overlooked, however, is that the relationship between privacy and utility depends crucially …

A Private Underworld: The Naked Body In Law And Society, Lawrence M. Friedman, Joanna L. Grossman

Buffalo Law Review

No abstract provided.

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 …

Location, Location, Location: Balancing Crime Fighting Needs And Privacy Rights, Nancy K. Oliver

University of Baltimore Law Review

No abstract provided.

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

The Illusion Of A Second Chance: Expunctions Versus The Law School And State Bar Application Processes, Lydia Johnson

Florida A & M University Law Review

No abstract provided.

Domestic Drones: Technical And Policy Issues, University Of Washington Technology And Public Policy Clinic

Technology Law and Public Policy Clinic

No abstract provided.

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Faculty Articles

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.