Privacy Law Commons^™

Confidentiality Of Ai Conversations: Protecting Self-Represented Litigants Who Use Chatgpt For Legal Advice, Anoo D. Vyas

Duke Law & Technology Review

When a layperson uses ChatGPT to obtain feedback on a legal matter, attorney-client privilege may not apply, as ChatGPT is not a lawyer, much less a human. Further, while lawyers are entitled to protection for their opinion work-product, it is not clear whether self-represented litigants are entitled to the same protection. Additionally, the broader duty of confidentiality binds only attorneys, not AI systems like ChatGPT. The public increasingly uses AI tools such as ChatGPT. If a layperson employs ChatGPT for legal advice, particularly in a civil matter, such communications may be discoverable and potentially admissible. This presents an access to …

Hester's Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Texas A&M Law Review

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its impact has steadily expanded, with the result that, by some estimates, the government can now engage in warrantless surveillance of some 96% of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings …

Regulating Data Monetization, Peter Ormerod

Texas A&M Law Review

Companies today generate hundreds of billions of dollars each year by collecting massive amounts of information about human activity and wringing predictive insights from it. The scale of these influence activities is stunning: your driving habits dictate your car insurance rates, buying the wrong thing will increase your borrowing costs, and the information ecosystem you inhabit is finely tuned for keeping your attention available to the highest bidder.

States have recently enacted new consumer privacy laws that confer on individuals a series of generally applicable rights over their personal information. But this approach has proven ineffective at disciplining firms’ data …

The Myth Of Sufficient Technological Barriers: Reevaluating The "Gates-Up-Or-Down" Analogy In Data Scraping, Yucen Zhong

Duke Law & Technology Review

In Van Buren v. United States, the Supreme Court adopted a “gates-up-or-down” analogy from physical trespass law to define “authorization” under the Computer Fraud and Abuse Act (CFAA). Despite historical shifts in judicial interpretation, courts have recently relied on this binary framework to interpret authorization as it applies to online trespass. But courts have struggled to apply this binary inquiry while still accounting for complications in modern authentication technologies. When pursuing a code-based inquiry based on the gates-up-or-down analogy, courts risk oversimplifying the dynamic nature of online trespass. Such an approach fails to account for how modern authentication measures—such as …

Combatting Ai-Generated Child Sexual Exploitation And Abuse Material: An Analysis Of India’S Techno-Legal Response, Dhruv Garg, Dedipyaman Shukla

Indian Journal of Law and Technology

The emergence of generative artificial intelligence (“AI”) presents a significant threat to child safety online, enabling the rapid creation and dissemination of child sexual exploitation and abuse material (“CSEAM”) at an unprecedented scale. This paper examines legal, institutional, and technical responses to AI-generated CSEAM in the Indian context, with a particular focus on the role of digital intermediaries, law enforcement coordination through the Sahyog Portal, and judicial interpretation under Indian law. Drawing on this analysis of key stakeholders, the paper argues for the orientation of India’s CSEAM framework towards proactive detection, and better integration between intermediaries and law enforcement. The …

Ai, Antitrust, And The Marketplace Of Ideas, Maurice E. Stucke

Fordham Law Review

No abstract provided.

Voices From Beyond The Grave: Protecting The Audio Of Murder Victims Through (Intellectual) Property Law, Alexandra M. Hudson

Washington and Lee Law Review

For most, the audio of a deceased loved one is a treasured keepsake. For the families of violent crime victims, it can be a harrowing reminder of their loved one’s death. And it can also be a source of content for true crime podcasters.

When a person dies from a violent crime and their killer is prosecuted, the audio associated with the crime (body camera footage, 911 calls, surveillance footage, etc.) frequently becomes public record. Public record laws vary greatly across the United States but typically err toward disclosure to promote government transparency. Broad public record laws benefit the public …

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

Systemically Valuable Transaction Costs, Mitchell C. Johnston

Indiana Law Journal

Ronald Coase’s famous theorem tells us that in a world without transaction costs, legal entitlements would be distributed efficiently. It is often treated as a corollary of the Coase Theorem that reductions in transaction costs generate increases in welfare as barriers to efficiency-increasing transactions fall. To be sure, not all voluntary transactions are efficiency increasing (for example, some transactions create negative externalities). In such cases, scholars have noted that transaction costs may inhibit socially inefficient transactions. But the situation is more complex. Drawing on ideas from systems theory, this Article advances a more complete theory of when transaction costs support …

The Racialized Treadmill Of Robotic Agriculture: Colonial Legacies, Legal Exceptionalism, And Labour Control, Vasanthi Venkatesh

Canadian Journal of Law and Technology

The title of this paper draws on two historical meanings of the word ‘‘treadmill”. First, it references the economic concept of the ‘‘agricultural technology treadmill”, which describes how technological advances in farming lead to market consolidation, pushing smaller producers out while benefiting agribusiness oligopolies. Second, it invokes the literal treadmill, which was invented in 1818 as a punitive labour technology and a ‘‘rational” tool to discipline racialized and indentured labourers in colonial plantations. By connecting these two threads in agricultural technology — economic domination and racialized labor control — this paper examines how robotics and automation in modern agriculture perpetuate …

Consensus Ad Artificialis: Contract Theory Meets The Genai Mind, Katie Szilagyi, Marina Pavlovic´

Canadian Journal of Law and Technology

The advent of generative AI (GenAI) has generated shockwaves across industries. Many established professions are grappling with how GenAI’s functionality transforms their daily activities, staying power, and raison d’eˆtre. GenAI’s newfound facility with words and language has rapidly encroached upon the purview of lawyers, whose trade has long been expertise with words. While some worry about lawyers’ place in a GenAI-oriented future economy, others are optimistic about the transformative potential GenAI offers as a tool to the practicing lawyer. Legal service providers have been quick to adopt GenAI tools in the name of efficiency, harnessing its generative power for tasks …

Cognitive Warfare: Generative Ai, False Realities, And International Humanitarian Law, Gary Corn

Joint PIJIP/TLS Research Paper Series

This paper, written as a draft chapter for the Lieber Institute for Law and Land Warfare's forthcoming book on International Law and Artificial Intelligence in Armed Conflict: The AI-Cyber Interplay, explores the IHL implications of a specific subfield or category of AI—Generative AI (GenAI). This new and rapidly evolving technology does not merely analyze or classify data; it also generates original image, audio, and video content. This synthetic content can be highly deceptive and manipulative, as in the case of so-called “deepfakes.” Combined with other information and communications technologies (ICT) and AI capabilities, GenAI has the potential to drastically transform …

Scraping Bad: The Case For A Unified Scraping Framework, Eunchong Moses Park

Washington and Lee Law Review Online

This Note explores the growing legal and regulatory landscapes of web scraping in the United States and argues that web scraping should be regulated through a unified federal framework tailored to its unique technological and economic realities. Web scraping allows organizations to collect massive amounts of data essential to their operational needs—often without the consent of data holders. Thus, web scraping has become a powerful engine of innovation used across virtually every sector of the economy but with a serious risk to privacy and property interests. Yet the current U.S. legal framework lacks a coherent regulating structure. Courts and litigants …

Comment On “Voices From Beyond The Grave: Protecting The Audio Of Murder Victims Through (Intellectual) Property Law” By Alexandra M. Hudson, Christopher B. Seaman

Washington and Lee Law Review

Alex’s Note correctly identifies the tension between two important, competing values when it comes to how the law should deal with the sound recordings of murder victims captured in a public record, such as a 911 call or body camera footage. The first value is government transparency, including disclosure of public records through federal and state Freedom of Information Acts (FOIAs). As the Supreme Court has explained, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption, and to hold the governors accountable to the governed.” …

A Real Account Of Deep Fakes, Benjamin L.W Sobel

Michigan Law Review

Laws regulating pornographic deepfakes are written to prohibit “digital forgeries,” “false” images, or media “indistinguishable” from “authentic” recordings. Yet the typical anti-deepfake law covers materials that aren’t forgeries, aren’t false, and that reasonable observers can easily distinguish from authentic recordings. Though drafted as if they regulate statements of fact, anti-deepfake laws actually target certain outrageous depictions per se—and rightly so, because pornographic deepfakes cause harm irrespective of their truth or falsity. However, the inapposite language of facts results in statutes with crucial ambiguities. Moreover, because anti-deepfake laws ban outrageous depictions irrespective of the factual assertions they make, they differ fundamentally …

We Robot 2025: Connecting Global Robotics And Ai Governance Experts In Canada, Kristen Thomasen, Suzie Dunn

Canadian Journal of Law and Technology

This special We Robot issue of the Canadian Journal of Law and Technology is particularly ‘‘special” to us for a variety of reasons. It presents an important opportunity to highlight the interdisciplinarity required to meaningfully engage with robotics and artificial intelligence (‘‘AI”) regulation. It highlights the growing international connections among law and technology scholars. And it features many of the cutting-edge papers from one of the world’s premier law and robotics conferences, We Robot.

The thirteenth annual We Robot 2025 conference was held at the University of Windsor in April 2025. This conference marked the first ever in-person gathering of …

To Smile Or Not To Smile? What Policymakers Need To Know About The Interplay Between Expressive Robotics And Public Perception, Adeline Schneider, Waseq Billah, Naomi T. Fitter

Canadian Journal of Law and Technology

The growing presence of autonomous delivery robots (ADRs) in public spaces has introduced new challenges regarding public perception, safety, and policy regulation. While ADRs provide a convenient, contactless delivery solution, there has been little research exploring how their design influences public acceptance and regulatory concerns. This study investigates the impact of expressive robotic features on perceptions of ADRs through a between-subjects online survey comparing two ADR models: the expressive Dax robot and the more widely deployed Starship robot. Participants answered questions about the robots’ expressivity and policy-relevant perceptions surrounding the robot. Findings showed a mix of enhancements from added robot …

Interoperable Ai Regulation, Jennifer Raso

Canadian Journal of Law and Technology

This article explores ‘‘interoperability” as a new goal in AI regulation in Canada and beyond. Drawing on sociotechnical, computer science, and digital government literatures, it traces interoperability’s conceptual genealogy to reveal an underlying politics that prioritizes harmony over discord and consistency over plurality. This politics, the article argues, is in tension with the distinct role of statutory law (as opposed to regulation) in a democratic society. Legislation is not simply a technology through which one achieves the smooth operation of governance. Rather, legislation is better understood as a ‘‘boundary object”: an information system through which members of different communities make …

Generating Personal Data And The Gdpr Conceptualizing, Analyzing, And Recognizing Generated Personal Data, Hideyuki Matsumi

Canadian Journal of Law and Technology

In 2014, to fight the littering problem, an environmental group posted portraits of potential litterbugs on public streets. The group extracted DNA from tossed cigarettes, coffee cups, or condoms, and generated the possible likeness of individuals whose DNA was found from these items in public. Similarly, in 2017, detectives working on a cold case sent DNA found at the crime scene of a homicide and sexual assault victim from 1990 to a company that claims it ‘‘can turn DNA into a face”. Subsequently, detectives published the ‘‘predicted face” in an attempt to solicit tips from the public. In 2020, they …

R-Ai-Sing Questions: Exploring The Ethical And Legal Landscape Of Artificial Intelligence-Generated Media Of Medicalized Children, Kristen Thomasen, Gregorio Zuniga-Villaneuva, Muhammed Mukadam, David Lysecki

Canadian Journal of Law and Technology

When it comes to complex medical care for children, even in a country like Canada with many publicly funded healthcare services, much of the necessary research and holistic support for children and families is financed through private donations. Fundraising campaigns for children’s hospitals and services are common, often featuring movie stars, professional athletes, and many child patients. A range of important charitable activities, providing comfort, services, and necessities such as food and accommodation to children and families, are carried out through fundraising and donations. Fundraising for children’s services is a multibillion-dollar global undertaking. What’s more, it is largely dependent on …

Game Face: Legal Tackle On Facial Recognition And Privacy Rights At Nfl Games, Shanthi E. Senthe

Canadian Journal of Law and Technology

The unprecedented rapid uptake of facial recognition technology (‘‘FRT”) in commercial and public spaces for data capture and surveillance has entrenched every aspect of our daily lives from mundane tasks, such as grocery store shopping to family and experiential moments, such as participation in spectator sports. As such, the rapid adoption and integration of FRT into sports security is reshaping aspects of sporting events and fan experiences, often without adequate consideration of privacy and ethical implications. Professional sports leagues, specifically the NFL, are in the process of adopting the use of this type of technology to enhance security measures, streamlining …

Brokering Safety, Chinmayi Sharma, Thomas E. Kadri, Sam Adler

Articles

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim's personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity-that is, making themselves and their information harder to find.

This Article exposes privacy law's …

The Press, Privacy, Expungement, And Second Chances: Shifting The Paradigm, Brian M. Murray

Villanova Law Review (1956 - )

No abstract provided.

A Legal Transplant Failure In The Ai Age, Xuan-Thao Nguyen

Articles

Thailand positions itself as the new AI-driven innovation hub in the Southeast Asia region as Big Tech companies invest billions in building new data centers to power the AI transformations in all sectors in Thailand. An integral part of Thailand’s new ambition is the legal transplant of personal data protection law from Europe. The transplant, however, is of form, not substance, as this Article illustrates the failure through in-depth analysis of Thailand’s Personal Data Protection Act and provides evidence of rampant violations and noncompliance by the largest ecommerce conglomerate and SMEs. This Article offers suggestions for Thailand to realign its …

On Predicting And Stopping Dystopia, Evan Selinger, Woodrow Hartzog

Faculty Scholarship

Is it reasonable to be dystopian about how the future will likely unfold? We think so. For some time, we have been arguing that facial recognition technology is a perfect tool of oppression, and that its pernicious affordances are leading society down a slippery slope toward the evisceration of privacy by obscurity. This is a soft form of “determinism”—the notion that while technology is not an unstoppable force and the future is not preordained, there nevertheless are identifiable factors, such as the invitingness of affordances, human nature, and incentives that drive technology in certain directions and make some social outcomes …

Kodak To Deepfakes: Publicity Rights And Abuse Of Our Likenesses, Michael Goodyear

Other Publications

No abstract provided.

Negligent Hiring: Recidivism And Employment With A Criminal Record, Benjamin Pyle

Northwestern University Law Review

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, …

Reimagining Graphical Representation: A Case Comment On The Registration Of India’S First Scent Trademark, Siddhant Shinde

Indian Journal of Law and Technology

This case comment analyses the Trade Marks Registry’s decision of permitting the registration of India’s first scent trademark, filed by Sumitomo Rubber Industries Ltd. for a “smell reminiscent of roses as applied to tyres”. This decision raises a key question concerning the graphical representation requirement under the Trade Marks Act, 1999. While the Registry accepted a seven-dimensional scientific vector model of the scent as sufficient graphical representation, the Order offers little engagement with the legal reasoning required to support such a departure from conventional understandings of graphical representation. Thus, this case comment attempts to doctrinally justify such an interpretive expansion …

Kennelly V. Mid Coast And The Maine Law Court's Erroneous Ruling On The Discoverability Of Redacted Patient Info, John Blegen

Student Journal of Information Privacy Law

This paper examines a recent Maine Law Court decision, Kennelly v. Mid Coast, in which the Law Court held that the medical records of individuals not involved in a lawsuit, even when redacted of identifying materials, are protected from discovery orders in a malpractice lawsuit, where the records would be used to demonstrate a standard of care to be expected of the administering doctor. It then examines the privacy interests individuals retain in their redacted healthcare records more broadly, in part to emphasize the large variety of contexts in which this issue can come up, and also to show how …

Can Ai Fix Anti-Money Laundering? The Case For Federated Intelligence In Financial Crime Prevention, Matthias Connelly

Student Journal of Information Privacy Law

The global anti-money laundering (AML) regime is failing. Trillions of dollars are laundered each year, yet governments detect only a fraction of that activity, even as financial institutions spend hundreds of billions on compliance. In the United States, AML regulation has evolved from a retrospective, prosecution-oriented framework into an expansive, preventative regime that measures inputs rather than enforcement outcomes. Although artificial intelligence has demonstrated potential to improve detection, firm-siloed AI systems introduce substantial financial, technological, and systemic risks, including prohibitive development costs, data- privacy constraints, and market concentration among third-party service providers. This Article argues that federated learning offers a …