Privacy Law Commons^™

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Big Data, Big Gap: Working Towards A Hipaa Framework That Covers Big Data, Ryan Mueller

Indiana Law Journal

One lasting impact of the Health Insurance Portability and Accountability Act (HIPAA) is the privacy protections it provides for our sensitive health information. In the era of Big Data, however, much of our health information exists outside the traditional doctor-patient dynamic. From wearable technology, to mobile applications, to social media and internet browsing, Big Data organizations collect swaths of data that shed light on sensitive health information. Big Data organizations largely fall outside of HIPAA’s current framework because of the stringent requirements for when the HIPAA protections apply, namely that the data must be held by a covered entity, and …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo

Washington Law Review

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G. S. Hans

Vanderbilt Law School Faculty Publications

A decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it …

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post

All Faculty Scholarship

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

The First Amendment And Data Privacy: Securing Data Privacy Laws That Withstand Constitutional Muster, Kathryn Peyton

Pepperdine Law Review

Given the growing ubiquity of digital technology’s presence in people’s lives today, it is becoming increasingly more necessary to secure data privacy protections. People interact with technology constantly, ranging from when engaging in business activates, such as corresponding through emails or doing research online, to more innocuous activities like driving, shopping, or talking with friends and family. The advances in technology have made possible the creation of digital trails whenever someone interacts with such technology. Companies aggregate data from data trails and use predictive analytics to create detailed profiles about citizen-consumers. This information is typically used for profit generating purposes. …

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 …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes

Publications

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members …

Censorship, Free Speech & Facebook: Applying The First Amendment To Social Media Platforms Via The Public Function Exception, Matthew P. Hooker

Washington Journal of Law, Technology & Arts

Society has a love-hate relationship with social media. Thanks to social media platforms, the world is more connected than ever before. But with the ever-growing dominance of social media there have come a mass of challenges. What is okay to post? What isn't? And who or what should be regulating those standards? Platforms are now constantly criticized for their content regulation policies, sometimes because they are viewed as too harsh and other times because they are characterized as too lax. And naturally, the First Amendment quickly enters the conversation. Should social media platforms be subject to the First Amendment? Can—or …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Danielle K. Citron, Robert Chesney

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

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 …

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

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 …

The Deliberative Privacy Principle, B. Jessie Hill

Faculty Publications

In this article, I propose that there is a deep connection among at least three seemingly disparate types of constitutional rights claims. Those three rights claims are the right to make the abortion decision for any reason one chooses; the right against compelled ideological speech; and the right of religious institutions to freely hire and fire their ministers (also known as the “ministerial exception”). In particular, there is a thread that unites all of these types of claims. That unifying thread is the concept of deliberative privacy. The connection among these rights claims has not been previously made explicit by …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall

Catholic University Journal of Law and Technology

Videos, known as deepfakes, use readily available software to create a work that shows people saying and doing things they may never have uttered or engaged in. The technology making the videos appear very authentic is advancing at such a rate that people may not be able to detect if the videos are fact or fiction. Given the hasty acceptance of other forms of fake news in society, deepfake videos have the ability to affect the nature of information the public receives about candidates and policies. This study examines the potential use of deepfake videos in the democratic process, analyzes …

Robotic Speakers And Human Listeners, Helen Norton

Publications

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Mark Bartholomew

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 …

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Samantha Barbas

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Brian Larson

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.