Privacy Law Commons^™

Candidate Privacy, Rebecca Green

Faculty Publications

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

The Relationship Between Privacy Notice Formats And Consumer Disclosure Decisions: A Quantitative Study, Alexys Mercedes Carlton, David Cross

Publications

In the Data Era, the future success of many businesses will heavily depend on the business’ ability to collect and process consumer personal information. Business leaders must understand and implement practices that increase consumer trust to influence their willingness to disclose their information. The problem addressed by this study is many consumers do not trust online service providers with their personal information, and as a result, have refrained from engaging in online activities. The purpose of this quantitative correlational study was to understand how consumers use privacy notices when deciding to share their personal information with online businesses. A sample …

Privacy Protection(Ism): The Latest Wave Of Trade Constraints On Regulatory Autonomy, Svetlana Yakovleva

University of Miami Law Review

Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning …

Republican Attorneys General Association V. Las Vegas Metropolitan Police Department, 136 Nev. Adv. Op. 3 (Feb. 20, 2020), Nicholas Hagenkord

Nevada Supreme Court Summaries

The Court determined that (1) the district court did not err in denying appellant Republican Attorneys General Association’s (RAGA) petition for a writ of mandamus under the Nevada Public Records Act (NPRA) seeking bodycam footage regarding juveniles and former State Senator Aaron Ford’s interactions with police; and (2) the district court abused its discretion in denying RAGA’s request for other requested records by not assessing whether these records contain any nonconfidential material.

The (Possibly) Injured Consumer: Standing In Data Breach Litigation, Lauren M. Lozada

St. John's Law Review

(Excerpt)

This Note will address the question of what factors a prospective plaintiff must display to “push [a] threatened injury of future identity theft beyond the speculative to the sufficiently imminent.” Part I will delve into relevant statistics to identify the characteristics of a data breach that most often lead to eventual identity theft. Part II will explore recent data breach standing cases and analyze the factual differences and legal perspectives that have led to disparate results among the federal circuits. Lastly, Part III will recommend a method for evaluating future data breach standing issues.

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das

St. John's Law Review

(Excerpt)

Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …

Appendix B: Ohio Attorney General Facial Recognition Task Force Proposal On Monitoring, Auditing, Enforcement And Transparency, Brian E. Ray, Dennis Hirsch

Law Faculty Reports and Comments

Policy controls that govern agency activity generally contain at least two components: (1) a substantive policy; and (2) a governance structure for ensuring implementation of and compliance with that policy. Effective controls require both. This proposal focuses on the second component, the governance structure. Specifically, it addresses routine monitoring, annual audits, enforcement of the AG’s policies that govern the facial recognition system, and public transparency. Established facial recognition policies, including those that the Task Force has looked to as models, recognize the importance of establishing such a governance structure.

We have reviewed existing federal and state policy templates documents in …

News As Surveillance, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors.

On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business model has …

Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Open Record Laws: Balancing The "Right To Know" With The Safety Of Reproductive Health Care Service Providers, Rebecca Bentley

Buffalo Human Rights Law Review

No abstract provided.

Competition, Privacy, And Big Data, Stanley M. Besen

Catholic University Journal of Law and Technology

This article analyzes the competition policy and privacy issues that are raised by large disparities in the amounts of consumer data that are held by different firms. First, it explains how competition authorities could take data acquisition into account in evaluating the effects of mergers and examines conditions under which those authorities might mandate data sharing among competitors. Next, it considers how privacy issues might be treated in analyzing whether data sharing should be permitted or mandated. Finally, it examines possible conflicts between policies that address competition and those that deal with privacy.

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

Privative Copyright, Shyamkrishna Balganesh

Vanderbilt Law Review

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

If The Law Can Allow Takebacks, Shouldn't It Also Allow Hackbacks?, Adam Rodrigues

Marquette Intellectual Property Law Review

None.

Saving The Electronic Person From Digital Assault: The Case For More Robust Protections Over Our Electronic Medical Records, Danielle M. Mrdjenovich

Duquesne Law Review

No abstract provided.

American Privacy Law At The Dawn Of A New Decade (And The Ccpa And Covid-19): Overview And Practitioner Critique, Kimberly Dempsey Booher, Martin B. Robins

Marquette Intellectual Property Law Review

No abstract provided.

An Analysis On Biometric Privacy Data Regulation: A Pivot Towards Legislation Which Supports The Individual Consumer's Privacy Rights In Spite Of Corporate Protections, Carla Llaneza

St. Thomas Law Review

This Comment will address the different ways in which biometric data has become an integral part of everyday American life, whether it be through the use of facial recognition for national security or the use of fingerprinting to access an individual’s smartphone. Part II will further discuss how biometric data privacy legislation, specifically as set out in the Biometric Illinois Privacy Act (“BIPA”), has become prominent and will analyze its effects on the legal rights of consumers to bring suit against private entities. Part III will discuss the present solutions available to consumers who fall victim to companies who distribute …

Retrievable Images On Social Media Platforms: A Call For A New Privacy Tort, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The recognition of a right of privacy in Warren and Brandeis’s famous article has long been celebrated and lamented. It is celebrated because privacy is a central feature of individual well-being that deserves legal protection. It is lamented because the protection they contemplated, and that is actually provided by the law, is quite modest. Modern technology, especially social media platforms, has only raised the stakes. Anytime one goes out in public, one risks having one’s image captured and shared worldwide, leaving us with little or no control over how we are perceived by others.

This Article argues for the recognition …

The Original Intent Of The Single Tax Principle: From Theory To Practice, Gianluca Mazzoni

SJD Dissertations

This dissertation is comprised of the following articles:

• The Italian Patent Box Regime and the Foreign Tax Credit, published as Mazzoni, G. “The Italian Patent Box Regime and the Foreign Tax Credit.” European Taxation 59, no. 9 (August 20, 2019). https://doi.org/10.59403/2p3evbr.
• The Italian Supreme Court's Decision in the ITW case (No. 32840): The Beneficial Ownership Requirement and Double Non-Taxation?
• Present at the Creation: Archival Research and Evidence on the Origins of the Single Tax Principle, published as Mazzoni, Gianluca. “Present at the Creation: Archival Research and Evidence on the Origins of the Single Tax Principle.” Intertax 47, no. Issue 10 …

A Genetic Surveillance State: Are We One Buccal Swab Away From A Total Loss Of Genetic Privacy?, Catherine Arcabascio

Faculty Scholarship

No abstract provided.

The Law Of The Tetrapods, Henry T. Greely

Vanderbilt Journal of Entertainment & Technology Law

Should there be such a thing as "Technology Law"? This Article explores that question in two ways. It first looks at four substantive issues that appear across many different areas of technology law: privacy, security, property, and responsibility. It then examines five questions that frequently recur about how to regulate very different new technologies. These questions include which agency should regulate, whether regulation should focus on before or after marketing, what jurisdiction should regulate, how relevant new information will be gained and used, and how-politically-good regulation can be enacted. This Article concludes that it may make sense to develop a …

Hipaa Reform Or A Patchwork Scheme: A Look At Preemption, Scope, And The Inclusion Of A Private Right Of Action In A New Federal Data Privacy Law, David Cohen

Upper Level Writing Requirement Research Papers

No abstract provided.

The Georgia Life Act: Limiting Women's State Constitutional Right To Privacy, Phoebe Varunok

Upper Level Writing Requirement Research Papers

No abstract provided.

Criminalizing Asylum: Dna Testing Asylum Seekers Violates Privacy Rights, Scarlett L. Montenegro

American University Journal of Gender, Social Policy & the Law

Introduction.

On June 16, 2015, President Trump announced his 2016 presidential campaign and claimed that Mexicans are criminals who “[h]ave lots of problems . . . they’re bringing drugs. They’re bringing crime. They’re rapists . . . It’s coming from all over . . . Latin America.” President Trump has publicly expressed his hostility towards immigrants by calling them “animals” and blaming them for drugs and gangs in the United States. While in office, President Trump tweeted that immigrants were invading the United States and suggested that “we must immediately, with no Judges or Court Cases, bring them back from …

Do You Accept These Cookies? How The General Data Protection Regulation Keeps Consumer Information Safe, Jayne Chorpash

Northwestern Journal of International Law & Business

Abstract:

This note examines the General Data Protection Regulation implemented in the EU in 2018. The GDPR was the result of a long history of data privacy laws that have been met with varying levels of success. While the GDPR has retained many characteristics that have made past privacy laws successful, it has also made some important changes. Most notably, the GDPR gives generous rights to consumers to guard and protect their data, which is of growing concern in light of how easy it is to share information in our modern age. Additionally, the GDPR has a much broader territorial …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

The Internet Never Forgets: A Federal Solution To The Dissemination Of Nonconsensual Pornography, Alexis Santiago

Seattle University Law Review

As technology evolves, new outlets for interpersonal conflict and crime evolve with it. The law is notorious for its inability to keep pace with this evolution. This Comment focuses on one area that the law urgently needs to regulate—the dissemination of “revenge porn,” otherwise known as nonconsensual pornography. Currently, no federal law exists in the U.S. that criminalizes the dissemination of nonconsensual pornography. Most U.S. states have criminalized the offense, but with vastly different degrees of severity, resulting in legal inconsistencies and jurisdictional conflicts. This Comment proposes a federal solution to the dissemination of nonconsensual pornography that carefully balances the …

In A World Of "Fake News," What's A Social Media Platform To Do?, Evelyn Aswad

Faculty Articles

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …