Privacy Law Commons^™

Client Confidentiality As Data Security, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

The duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure …

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Confidentiality Over Privacy, Stacey A. Tovino

Faculty Articles

No abstract provided.

At A Covid Crossroads : Public Health, Patient Privacy, And Health Information Confidentiality, Stacey A. Tovino

Faculty Articles

This essay summarizes and assesses the various bulletins, guidance documents, and notices of enforcement discretion released by the federal Department of Health and Human Services regarding the application of the HIPAA Privacy Rule to the COVID-19 pandemic. Among other topics and actions, these authorities address the application of the HIPAA Privacy Rule to the use and disclosure of protected health information for public health activities, waive the application of certain HIPAA Privacy Rule requirements during the COVID-19 pandemic, and announce enforcement discretion regarding certain covered entities’ non-compliance with particular provisions within the HIPAA Privacy Rule. These authorities overwhelmingly, and appropriately, …

Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley

Maine Law Review

The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …

Why New Hampshire Must Update Rape Shield Laws, Amy Vorenberg

Law Faculty Scholarship

[Excerpt] “Recent research indicates that New Hampshire has some of the highest rates of sexual assault in the nation; nearly one in four New Hampshire women and one in 20 New Hampshire men will experience sexual assault. Although reporting a crime can be hard for anyone, sexual assault victims have particular reasons for not reporting. After an assault, a rape victim typically feels embarrassment, shame and fears reprisal (most of these crimes are committed by an acquaintance). The deeply personal nature of rape makes it uniquely traumatizing and confusing.”

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Indiana Law Journal

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current …

Teaching The Hipaa Privacy Rule, Stacey A. Tovino

Scholarly Works

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

The Atlantic Divide On Privacy And Speech, Neil M. Richards, Kirsty Hughes

Scholarship@WashULaw

When does a right to privacy become a right of censorship? Conversely when does freedom of speech become a carte blanche to violate the dignity and autonomy of others? Discussions of privacy throughout the world frequently boil down to these questions. Despite the parallel relationships between privacy and speech in the United Kingdom and America, and despite their shared legal heritage, the two legal systems have struck the balance in radically different ways. In the United States, decisions balancing privacy and the First Amendment have invariably favoured the free speech interest, at least where a press defendant published lawfully-obtained “newsworthy” …

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

Taking Trust Seriously In Privacy Law, Neil Richards, Woodrow Hartzog

Faculty Scholarship

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

Wisconsin School For Girls Inmate Record Books: A Case Study Of Redacted Digitization, Eric Willey, Laura Farley

Faculty and Staff Publications – Milner Library

The Wisconsin School for Girls collection housed in the Wisconsin Historical Society (WHS) archives contains a variety of documents from the institution’s period of operation. Inmates who were admitted to the institution were predominately juvenile females at the time of the records’ creation; because of this, the contents of the records are protected by Wisconsin state statutes, which mandate restricted access for patrons as well as limitations on the use of the information contained within the records. This article examines how the restrictions on the collection continue to protect the privacy of the inmates and their descendants, what procedures WHS …

The Snowden Effect: The Conflict In A Free Society, Who Values Privacy Versus Who Values Security?, Matthew C. Blake

Political Science Theses and Capstones

The Obama Administration has come under scrutiny by both the public and Congress, since former National Security Agency (NSA) contractor Edward Snowden made known the scope of government surveillance programs being utilized by the U.S. government to gather intelligence on domestic citizens. Snowden’s disclosures about the government’s surveillance practices to the mainstream media began in June 2013. I focus on how public opinion towards the government’s surveillance practices and an individual’s reasonable right to privacy has shifted after revelations made by Edward Snowden on the practices of the NSA. Individuals may show support for more government surveillance in the name …

Avoiding Unintended Disclosure: Representing Clients With Hiv And Aids, Lashanda Taylor Adams

Journal Articles

When the HIV/AIDS epidemic was initially recognized in the United States, many attorneys wondered what it would mean to represent a client with HIV. As the number of HIV-infected individuals grew, so did the need for attorneys to represent them. Specifically, attorneys questioned whether or not their duty of confidentiality would expose them to civil liability from failing to protect a third party.1 In response to this concern, several law review articles were written discussing the dilemma faced by attorneys bound by professional rules of conduct.2 These articles focused on the needs of the attorney and the public rather than …

Silence Is Golden ... Except In Health Care Philanthropy, Stacey A. Tovino

Faculty Articles

No abstract provided.

Reviving Implied Confidentiality, Woodrow Hartzog

Faculty Scholarship

The law of online relationships has a significant flaw-it regularly fails to account for the possibility of an implied confidence. The established doctrine of implied confidentiality is, without explanation, almost entirely absent from online jurisprudence in environments where it has traditionally been applied offline, such as with sensitive data sets and intimate social interactions.

Courts' abandonment of implied confidentiality in online environments should have been foreseen. The concept has not been developed enough to be consistently applied in environments such as the Internet that lack obvious physical or contextual cues of confidence. This absence is significant because implied confidentiality could …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

The Fight To Frame Privacy, Woodrow Hartzog

Faculty Scholarship

The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that …

Electronic Evidence In Canada, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.

Chain-Link Confidentiality, Woodrow Hartzog

Georgia Law Review

Disclosing personal information online often feels like
losing control over one's data forever; but it does not have
to be that way. This Essay proposes a "chain-link
confidentiality" approach to protecting online privacy.
One of the most difficult challenges to guarding privacy in
the digital age is the protection of information once it is
exposed to other people. A chain-link confidentiality
regime would link the disclosure of personal information
to obligations to protect that information as the
information moves downstream. It would focus on the
relationships not only between the discloser of information
and the initial recipient but also between …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Access To Medical Records For Research Purposes: Varying Perceptions Across Research Ethics Boards, Donald Willison, Claudia Emerson, Karen Szala-Meneok, Elaine Gibson, Lisa Schwartz, Karen Weisbaum, François Fournier, Kevin Brazil, Michael Coughlin

Articles, Book Chapters, & Popular Press

Variation across research ethics boards (REBs) in conditions placed on access to medical records for research purposes raises concerns around negative impacts on research quality and on human subject protection, including privacy. Aim: To study variation in REB consent requirements for retrospective chart review and who may have access to the medical record for data abstraction. Methods: Thirty 90-min face-to-face interviews were conducted with REB chairs and administrators affiliated with faculties of medicine in Canadian universities, using structured questions around a case study with open-ended responses. Interviews were recorded, transcribed and coded manually. Results: Fourteen sites (47%) required individual patient …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …

Making The Plaintiff ’S Bar Earn Its Keep: Rethinking The Hospital Incident Report, Katherine Mikk

NYLS Law Review

No abstract provided.

Confidentiality Of Educational Records And Child Protective Proceedings, Frank E. Vandervort

Book Chapters

The Federal Family Education Rights and Privacy Act (FERPA), which provides funding for state educational programming, requires that student records be disclosed to a nonparent only with the written consent of the child’s parent, unless the disclosure falls within one of the several exceptions detailed in the statute. One of the exemptions provided for in the federal law permits a school to disclose information to “state or local officials or authorities to whom [that] information is allowed to be reported or disclosed pursuant to state statute,” if that official certifies in writing “that the information will not be disclosed to …

Privacy's Other Path: Recovering The Law Of Confidentiality, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the …

The Information Privacy Law Project, Neil M. Richards

Scholarship@WashULaw

One of the most interesting developments in privacy law literature over the past few decades has been the emergence of The Information Privacy Law Project, a group of scholars focused on the legal issues raised by the increasing collection, use, and disclosure of personal information made possible by evolving digital technologies. These scholars have sought to establish information privacy law as a field of study distinct from the constitutional right to decisional privacy. This Essay uses the recent publication of a major work by Daniel J. Solove, "The Digital Person: Privacy and Technology in the Digital Age", as a lens …