Privacy Law Commons^™

Predictability For Privacy In Data Driven Government, Jordan Blanke, Janine Hiller

Minnesota Journal of Law, Science & Technology

No abstract provided.

Deepfakes: False Pornography Is Here And The Law Cannot Protect You, Douglas Harris

Duke Law & Technology Review

It is now possible for anyone with rudimentary computer skills to create a pornographic deepfake portraying an individual engaging in a sex act that never actually occurred. These realistic videos, called “deepfakes,” use artificial intelligence software to impose a person’s face onto another person’s body. While pornographic deepfakes were first created to produce videos of celebrities, they are now being generated to feature other nonconsenting individuals—like a friend or a classmate. This Article argues that several tort doctrines and recent non-consensual pornography laws are unable to handle published deepfakes of non-celebrities. Instead, a federal criminal statute prohibiting these publications is …

The Ironic Privacy Act, Margaret Hu

Scholarly Articles

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act's reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly …

Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor

Scholarly Articles

Smart-city technology is being adopted in cities all around the world to simplify our lives, save us time, ease traffic, improve education, reduce energy usage, and keep us healthy and safe. Its adoption is necessary because of changes that are predicted for urban dwellers over the next three decades; urban population and travel are predicted to increase dramatically and our population is graying, meaning the population will include a much greater number of elderly citizens. As these changes occur, smart-city technology can have a huge impact on public safety, improving the ability of law enforcement to investigate crimes, both with …

Has Regulation Affected The High Frequency Trading Market?, Kevin O'Connell

Catholic University Journal of Law and Technology

As technology rapidly advances society, there are a few industries that have not been drastically impacted by disruptive technology. The financial markets are no different. Over the past ten years, algorithmic trading has quickly revolutionized the financial markets and continues to dominate an industry that for many years remained largely uninfluenced by society’s technological advances. Algorithmic trading is “a type of trading done with the use of mathematical formulas” and market data “run by powerful computers” to execute trades. One of the most commonly used platforms of algorithmic trading is high frequency trading. High frequency trading (“HFT”) uses a computerized …

Does What Happens In Vegas Really Stay In Vegas?: The Potential Impact Of The Las Vegas Massacre On Domestic Hotel Security And Individual Privacy Rights In Home-Like Places, Ashley J. Puchalski

Duquesne Law Review

No abstract provided.

Panel Iii: Practicing Blockchain Law, 34 Uic J. Marshall J. Priv. & Tech. L. 52 (2019), Peter Nadimi, Samuel Korver, Zach Smolinski, Lauren Steinhaeuser, Corey Bieber

UIC John Marshall Journal of Information Technology & Privacy Law

The most disruptive technology to emerge in the past decade, blockchain technology has had an immediate impact on the legal industry to address the new issues that blockchain, cryptocurrencies, and distributed ledger technologies present. This panel discusses why it is important for lawyers to take an interest in this area, and more importantly, how lawyers of all experience levels can get involved in the blockchain space. The panel will share diverse experiences and insights from those on the ground who do blockchain legal work.

Panel I: Blockchain And The Law, 34 Uic J. Marshall J. Priv. & Tech. L. 1 (2019), Carla Reyes, Nelson Rosario, Rachel Cannon, Richard Tall

UIC John Marshall Journal of Information Technology & Privacy Law

The most disruptive technology to emerge in the past decade, blockchain technology has had an immediate impact on the legal industry to address the new issues that blockchain, cryptocurrencies, and distributed ledger technologies present. This panel provides an overview of blockchain technology, including current and potential applications, and discusses how blockchain intersects with various sectors of the law. The panelists define this new technology, identify potential legal challenges ahead, and explain how new and seasoned attorneys can engage in this emerging area.

Panel Ii: Blockchain Regulation And Criminal Law, 34 Uic J. Marshall J. Priv. & Tech. L. 31 (2019), Justin Steffen, Michele Korver, Elaine Wyder-Harshman, Michael Baumert, Emily Hayes

UIC John Marshall Journal of Information Technology & Privacy Law

The most disruptive technology to emerge in the past decade, blockchain technology has had an immediate impact on the legal industry to address the new issues that blockchain, cryptocurrencies, and distributed ledger technologies present. This panel discusses current and potential regulatory issues facing blockchain technology, including ICOs and securities regulation, prevention of blockchain use in criminal activities, the uncertain tax landscape, and the unique challenges of regulating a global borderless technology.

The Case For An Information Tax: Cumulative Harm In The Collective Misuse Of Information, Ying Hu

Cornell Journal of Law and Public Policy

This Article draws attention to the need to focus on collective, as opposed to individual, misuse of information in the big data era. Responsibility for collective misuse of information derives from our responsibility as members of a community to identify and remedy group wrongs. It in turn provides a basis for imposing information tax on persons that make nontrivial contributions to collective misuse of information.

Commercial Clicks: Advertising Algorithms As Commercial Speech, Kerri A. Thompson

Vanderbilt Journal of Entertainment & Technology Law

Congressional hearings have finally called for the "right regulation" of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the "wrong regulation" by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook's advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in …

Towards A New California Revised Uniform Fiduciary Access To Digital Assets Act, Michael T. Yu

Faculty Scholarship

California enacted the Revised Uniform Fiduciary Access to Digital Assets Act (the California RUFADAA) to govern the disclosure (or nondisclosure) of digital assets when a California resident dies. Digital assets include not just emails and social media accounts but may also include online files and assets, digital currencies, domain names, and blogs. The California RUFADAA ostensibly governs the disclosure of digital assets only when a California resident dies, and it, therefore, does not govern the scenario when a California resident becomes incapacitated and can no longer handle his or her digital assets. This scenario is likely to become more common …

The Value Of Deviance: Understanding Contextual Privacy, Timothy Casey

Faculty Scholarship

Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Pay For (Privacy) Performance: Holding Social Network Executives Accountable For Breaches In Data Privacy Protection, Lital Helman

Brooklyn Law Review

Social networking has proliferated over the past years and is now being utilized by a large percentage of the world’s population. Social networks substantially contribute to enhanced speech, creativity, and communication. Yet, their practices of collecting and monetizing personal data of users pose severe privacy risks. Compelling social networks to internalize these risks is crucial for the healthy evolution of social networking. This article proposes a novel approach to address this challenge: to link executive compensation in social networking firms to the quality of data protection the company provides to its users. This proposal is different from other solutions that …

Legalizing Intelligence Sharing: A Consensus Approach, Brian Mund

American University National Security Law Brief

No abstract provided.

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …

The Gdpr-Blockchain Paradox: Exempting Permissioned Blockchains From The Gdpr, Anisha Mirchandani

Fordham Intellectual Property, Media and Entertainment Law Journal

When considering the legal landscape emerging after the General Data Protection Regulation went into effect on May 25, 2018, the uncertainty surrounding the Regulation reaches its peak when it is applied to blockchain technology. While the goals of storing personal data on permissioned blockchains may align with the goals of accuracy and transparency emulated by the GDPR, the language of the Regulation makes it likely that blockchain technology, as a whole, violates the GDPR. Permissioned blockchains have promising use cases and developments that have not only streamlined data storage, but also allowed users to have increased control over who accesses …

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment's Third-Party Doctrine, Cristina Del Rosso

Honors Undergraduate Theses

The intent of this thesis is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the United States Supreme Court's decision in Carpenter v. United States. In order to better understand the Supreme Court's reasoning in that case, this thesis will review the history of the third-party doctrine and its roots in United States v. Miller and Smith v. Maryland. A review of Fourth Amendment history and jurisprudence is also crucial to this thesis, as it is imperative that individuals do not forfeit …

Going Rogue: Mobile Research Applications And The Right To Privacy, Stacey A. Tovino

Faculty Articles

This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects, …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel

Catholic University Journal of Law and Technology

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Catholic University Journal of Law and Technology

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to …

Let’S Get This Show On The Road: Driverless Cars Have Arrived And It’S Time To Advance The Regulatory Framework, Joshua D. Borneman

Catholic University Journal of Law and Technology

The potential benefits that driverless automobile technology will provide to the U.S. and its roadways are vast. Greatly enhanced safety of American citizens is chief among these benefits. Congressional and administrative support will be required if these benefits are to be completely realized by American society. However, lawmakers are dragging their feet on passing legislation that will allow driverless cars to hit the road in full force. This comment examines the legislative proposals put forth by the House of Representatives and Senate. It argues that the differences between the two versions are inconsequential and urges lawmakers to act in order …

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing …

Shopping For Privacy: How Technology In Brick-And-Mortar Retail Stores Poses Privacy Risks For Shoppers, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

As technology continues to rapidly advance, the American legal system has failed to protect individual shoppers from the technology implemented into retail stores, which poses significant privacy risks but does not violate the law. In particular, I examine the technologies implemented into many brick-and-mortar stores today, many of which the average everyday shopper has no idea exists. This Article criticizes these technologies, suggesting that many, if not all of them, are questionable in their legality taking advantage of their status in a legal gray zone. Because the American judicial system cannot adequately protect the individual shopper from these questionable privacy …

The End Of Miller’S Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Georgia Law Review

For over 40 years, the Supreme Court has permitted
government investigators to warrantlessly collect
information that citizens disclose to third-party service
providers. That third-party doctrine is under significant
strain in the modern, networked world. Yet scholarly
responses typically fall into unhelpfully extreme camps,
either championing an absolute version of the doctrine
or calling for its abolition. In Carpenter v. United
States, the Court suggested a middle road, holding that
some categories of data—such as digital location
information collected from cell phones—do not neatly
fall into the third-party doctrine’s dichotomy between
unprotected, disclosed information and protected,
undisclosed information. But the majority …

Data Scraping As A Cause Of Action: Limiting Use Of The Cfaa And Trespass In Online Copying Cases, Kathleen C. Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, online platforms have used claims such as the Computer Fraud and Abuse Act (“CFAA”) and trespass to curb data scraping, or copying of web content accomplished using robots or web crawlers. However, as the term “data scraping” implies, the content typically copied is data or information that is not protected by intellectual property law, and the means by which the copying occurs is not considered to be hacking. Trespass and the CFAA are both concerned with authorization, but in data scraping cases, these torts are used in such a way that implies that real property norms exist …

The Future Of Facial Recognition Is Not Fully Known: Developing Privacy And Security Regulatory Mechanisms For Facial Recognition In The Retail Sector, Elias Wright

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the …

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …