Privacy Law Commons^™

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt

Faculty Scholarship

The emergence of Big Data challenges the conventional boundaries between governing, exchange, and security. It ambiguates the lines between commerce and surveillance, between governing and exchanging, between democracy and the police state. The new digital knowledge reproduces consuming subjects who wittingly or unwittingly allow themselves to be watched, tracked, linked and predicted in a blurred amalgam of commercial and governmental projects. Linking back and forth from consumer data to government information to social media, these new webs of information become available to anyone who can purchase the information. How is it that governmental, commercial and security interests have converged, coincided, …

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

Data Protection In The European Union: A Closer Look At The Current Patchwork Of Data Protection Laws And The Proposed Reform That Could Replace Them All, Christina Glon

Faculty Articles

Laws protecting a European's right to control the flow of their own personal data (also known as "data privacy") date back as early as 1950. In the 65 years since the Council of Europe declared that every person has the fundamental "right to respect for his private and family life, his home and his correspondence," a patchwork of conventions, directives, treaties and communications have been created to ensure the ongoing protection of this right. However, in recent years, this patchwork approach has been unable to keep up with the pace of technology and has created confusion and concern for the …

Riley V. California: The New Katz Or Chimel?, Adam Lamparello, Charles Maclean

Richmond Journal of Law & Technology

To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Comments: What's Yours Is Ours? Gamete Donation In The Marital Context: Why Courts And Legislatures Should Not Interfere With An Individual's Fundamental Right To Privacy, Emily K. Alt

University of Baltimore Law Review

No abstract provided.

Panel Iii: The Future Of The Press And Privacy, Amy Gajda, Clay Calvert, Tom Bivins, Amy Sanders, Stephen Ward

Faculty Scholarship

No abstract provided.

Gimme Shelter: International Political Asylum In The Information Age, Jacob Stafford

Vanderbilt Journal of Transnational Law

On June 5, 2013, an article in the Guardian revealed highly classified information about surveillance operations being performed by the United States National Security Administration (NSA). The source of this information was a former NSA contractor named Edward Snowden. After arriving in Moscow on June 23, Snowden spent the next forty days in the transit area of Sheremetyevo International Airport in a bizarre state of geopolitical purgatory. Eventually, Russia granted Snowden temporary asylum for one year, followed by a three-year residency permit. This Note uses Snowden's circumstance to consider the current state of international political asylum within the context of …

Legislating Trust, John D. Gregory

Canadian Journal of Law and Technology

As governments in Canada and elsewhere have considered statutes to ensure that electronic communications are legally effective, they have invariably had to face questions about the reliability of those communications. Can we trust electronic messages, documents, and signatures? Are they the same in law as if they were on paper? What conditions should be imposed in order to give us the right assurances that we can trust them? To answer these questions properly, we need to understand the nature of “trust” and the extent to which legislation can be a source of it, and what other sources should be enlisted …

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Journal Articles

There is an inherent tension between an individual’s desire to safeguard her personal information and the expressive rights of businesses seeking to communicate that information to others. This tension has multiplied as consumers generate and businesses collect more and more personal data online, forcing efforts to strike an appropriate balance between privacy and commercial speech. No consensus on this balance has been reached. Some privacy scholars bemoan what they see as a slanted playing field in favor of those wishing to profit from the private details of other people’s lives. Others contend that the right in free expression must always …

Clapper V. Amnesty International And Data Privacy Litigation: Is A Change To The Law “Certainly Impending”?, John L. Jacobus, Benjamin B. Watson

Richmond Journal of Law & Technology

On December 19, 2013, the retailer Target announced that unauthorized third parties had gained access to its customer payment information. While Target originally estimated that the security breach affected 40 million of its customers, a subsequent investigation revealed that anywhere from 70 to 110 million people—almost one in three Americans—may have had their sensitive payment information stolen. In response, the retailer offered free credit monitoring services and assured affected customers that they would not be responsible for fraudulent charges made with their payment information.

Privacy And Security Post-Snowden: Surveillance Law And Policy In The United States And India, Zachary W. Smith

Intercultural Human Rights Law Review

The paper is organized in a dual format, through the lens of two behemoths within the information technology sector: the United States and India. While India is an emerging superpower just beginning to recognize the role of information privacy in its society, the United States has a long paper trail of attempts to establish a settled framework for privacy enforcement. This article is subdivided into five sections in accordance with the New Haven' approach to give the reader comprehensive insight into the vexing issues that surround the information privacy debate today. Part I provides an interdisciplinary perspective into the rise …

Politics And The Public’S Right To Know, Lloyd Hitoshi Mayer

Journal Articles

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. …

Watching The Watchers, Neil M. Richards

Scholarship@WashULaw

In this essay from Wired Magazine (UK)'s special edition, The Wired World in 2014, Prof. Richards argues that sousveillance–watching the watchers–is an important development that will be on the rise in 2014.

Intellectual Freedom And Privacy, Neil M. Richards, Joanna Cornwell

Scholarship@WashULaw

This essay offers an account of the complex ways intellectual freedom and privacy are interrelated. We pay particular attention to both the constitutional dimensions of these important values, as well as the important roles that social and professional norms play in their protection in practice. Our examination of these issues is divided into three parts. Part I lays out the law and legal theory governing privacy as it relates to intellectual freedom. Part II examines a special context in which law and professional norms operate together to protect intellectual freedom through privacy–the library. Finally, Part III discusses how government actions …

Big Data Ethics, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

We are on the cusp of a “Big Data” Revolution, in which increasingly large datasets are mined for important predictions and often surprising insights. The predictions and decisions this revolution will enable will transform our society in ways comparable to the Industrial Revolution. We are now at a critical moment; big data uses today will be sticky and will settle both default norms and public notions of what is “no big deal” regarding big data predictions for years to come.

In this paper, we argue that big data, broadly defined, is producing increased powers of institutional awareness and power that …

Four Privacy Myths, Neil M. Richards

Scholarship@WashULaw

Any discussion about privacy today inevitably confronts a series of common arguments about the futility of privacy in our digital age. "Privacy is Dead," we hear, and "people (especially young ones) don’t care about privacy." What’s more, privacy just protects bad behavior because those of us with "nothing to hide have nothing to fear." And anyway, the argument goes, new privacy laws would be bad policy since "privacy is bad for business."

There are other common claims, but these four are perhaps the most common. They are also myths, and in this essay I show why. First, privacy can’t be …

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

The Right To Be Forgotten: Who Decides What The World Forgets?, Patricia Sánchez Abril, Jacqueline D. Lipton

Kentucky Law Journal

In May 2014, the Court of Justice for the European Union ("CJEU") surprised the global cyber law community by holding that search engines like Google are "controllers" of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual's rights under the Directive. This obligation has come to be referred to as an aspect of a digital "right to be forgotten." The search results in question related to a mortgage sale of property in a …

Privacy In Public, Joel R. Reidenberg

Faculty Scholarship

As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development …

The Data Surveillance State In Europe And The United States, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Regulating The Internet Of Things: First Steps Toward Managing Discrimination, Privacy, Security, And Consent, Scott R. Peppet

Publications

The consumer "Internet of Things" is suddenly reality, not science fiction. Electronic sensors are now ubiquitous in our smartphones, cars, homes, electric systems, health-care devices, fitness monitors, and workplaces. These connected, sensor-based devices create new types and unprecedented quantities of detailed, high-quality information about our everyday actions, habits, personalities, and preferences. Much of this undoubtedly increases social welfare. For example, insurers can price automobile coverage more accurately by using sensors to measure exactly how you drive (e.g., Progressive 's Snapshot system), which should theoretically lower the overall cost of insurance. But the Internet of Things raises new and difficult questions …

Hands Off Our Fingerprints: State, Local, Andindividual Defiance Of Federal Immigrationenforcement, Christine N. Cimini

Articles

Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the fingerprints against its immigration database. In the event of a match, an immigration detainer can be issued and an individual held after they would otherwise be entitled to release. Originally designed as a voluntary program in which local governments could choose to participate, the Department …

Communications Privacy For And By Whom?, Ryan Calo

Articles

A response to Professor Orin Kerr's The Next Generation Communications Privacy Act, which makes a series of quiet assumptions, however, that readers may find controversial.

First, the Article reads as though ECPA exists only to protect citizens from public officials. According to its text and to case law, however, ECPA also protects private citizens from one another in ways any new act should revisit.

Second, the Article assumes that society should address communications privacy with a statute, whereas specific experiences with ECPA suggest that the courts may be better suited to address communications privacy—for reasons Professor Kerr himself offers. …

Fan Fiction And Canadian Copyright Law: Defending Fan Narratives In The Wake Of Canada's Copyright Reforms, Rebecca Katz

Canadian Journal of Law and Technology

Amateur, non-commercial writing based on contemporary copyrighted works — “fan fiction” — is a practice that is worth defending despite its unclear status vis a vis copyright law. In this article, I assess how Canadian fan authors may defend their works using Canadian copyright law. I argue that the recent copyright reforms are promising for fan and other second generation creators. The new fair dealing categories of parody and satire are positive steps, though the broad and technologically neutral non-commercial user-generated content provi-sion may be the most promising reform of all. I begin with an exploration of the benefits of …

Atteinte À La Vie Privée Et Publicité Comportementale, Virginie Blanchette-Séguin

Canadian Journal of Law and Technology

Le présent texte aura pour objet les questions relatives à la vie privée que soulève la publicité comportementale et le suivi des activités des individus qu’elle implique par définition. Pour ce faire, nous délimiterons d’abord le spectre du droit à la vie privée en droit québécois dans ce contexte (I.) et nous poursuivrons selon une approche plus critique en nous prononçant sur les différents arguments pouvant être soulevés quant à l’absence d’une perception humaine dans une violation potentielle du droit à la vie privée (II.)

Privacy Harm Exceptionalism, Ryan Calo

Articles

“Exceptionalism” refers to the belief that a person, place, or thing is qualitatively different from others in the same basic category. Thus, some have spoken of America’s exceptionalism as a nation. Early debates about the Internet focused on the prospect that existing laws and institutions would prove inadequate to govern the new medium of cyberspace. Scholars have made similar claims about other areas of law.

The focus of this short essay is the supposed exceptionalism of privacy. Rather than catalogue all the ways that privacy might differ from other concepts or areas of study, I intend to focus on the …