Privacy Law Commons^™

Employee Electronic Communications In A Boundaryless World, Robert Sprague

Robert Sprague

One Hundred Twenty Years Of U.S. Privacy Law Scholarship: A Latent Semantic Analysis, Robert Sprague, Kevin Grauberger, Nicole Barberis

Robert Sprague

This paper reports results from a research project aimed at identifying fundamental privacy law principles derived from the writings of legal scholars and commentators using probabilistic topic modeling, which is comprised of a suite of algorithms that attempt to discover hidden thematic structures in large archives of documents. Topic modeling algorithms are statistical methods that analyze the words of texts to discover topics (themes) contained within, how those topics are connected to each other, and how they change over time. A latent Dirichlet allocation process, which identifies sets of terms that more tightly co-occur, is incorporated into the topic modeling …

Welcome To The Machine: Privacy And Workplace Implications Of Predictive Analytics, Robert Sprague

Robert Sprague

Light In The Darkness: How Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald

Susan Freiwald

This article measures the new ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records (LEATPR Standards) success by assessing the guidance they provide legislators interested in updating pertinent law regarding one specific type of data. Scholars should not expect the Standards to yield the same conclusions they would have furnished had they been able to draft a set of standards by themselves. The Standards emerged after years of painstaking consensus building and compromise no individual committee member got entirely what he wanted. Nonetheless, not every product of a committee turns out to have been worth the effort, …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald

Susan Freiwald

Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance …

Self, Privacy, And Power: Is It All Over? (With R. Sloan), Richard Warner

Richard Warner

The realization of a multifaceted self is an ideal one strives to realize. One realizes such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself when others may collect and how they may use your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here: informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the …

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

Do-Not-Track As Default, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Do-Not-Track is a developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature. The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This …

Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations. A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …

The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald

Susan Freiwald

The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …

Workplace Data: Law & Litigation (With 2014 Supplement), Robert Sprague

Robert Sprague

Workplace Data: Law and Litigation provides an overview of legal issues associated with employment-related electronically stored information (ESI), focusing on discovery issues in particular. Written for employment and labor law practitioners, this new treatise offers a comprehensive overview of today’s discovery challenges, a detailed statute-by-statute analysis of data retention requirements in federal workplace-related laws, a summary of emerging workplace social media and other technology-related issues and a guide to data protection privacy laws in North America, Europe, Asia and Oceania.

Intrusive Monitoring: Employee Privacy Expectations Are Reasonable In Europe, Destroyed In The United States, Lothar Determann, Robert Sprague

Robert Sprague

This Article examines the contrasting policy and legal frameworks relating to data privacy in the United States and the European Union, with a particular focus on workplace privacy and intrusive surveillance technologies and practices. It examines the U.S. perspective on modern work-related employer monitoring practices, the laws giving rise to possible employee privacy rights, and specific types of employer monitoring that may lead to actionable invasions of employee privacy rights. This article then addresses the issue of employee privacy from the EU perspective, beginning with an overview of the formation of authority to protect individual privacy rights, followed by an …

Invasion Of The Social Networks: Blurring The Line Between Personal Life And The Employment Relationship, Robert Sprague

Robert Sprague

Over one-half billion people worldwide have registered accounts with Facebook, the most popular online social network. This article addresses some of the more significant employment-related legal issues arising from the growing popularity of online social networks. First, the need for employers to investigate the background of prospective employees is examined from the context of employers using online social networks to conduct those investigations. In particular, this article analyzes the degree to which job applicants have privacy rights in the information they post online. This article then examines the interrelationship between online social networks and employees, focusing on limitations faced by …

Preserving Identities: Protecting Personal Identifying Information Through Enhanced Privacy Policies And Laws, Robert Sprague, Corey Ciocchetti

Robert Sprague

This article explores the developing phenomenon of the ongoing collection and dissemination of personal identifying information (PII): first, explaining the nature and form of PII, including the consequences of its collection; second, exploring one of the greatest threats associated with data collection - unauthorized disclosure due to data breaches, including an overview of state and federal legislative reactions to the threats of data breaches and identity theft; third, discussing common law and constitutional privacy protections regarding the collection of personal information, revealing that United States privacy laws provide very little protection to individuals; and fourth, examining current practices by online …

Electronic Surveillance In The Global Workplace: Laws, Ethics, Research And Practice, Roland Kidwell, Robert Sprague

Robert Sprague

This paper considers the legal, ethical and cultural factors that must be addressed in evaluating the appropriateness of employing electronic surveillance (ES) in varying international contexts. It critically evaluates the rationale that underlies the use of ES in a variety of settings and types of organisations. It suggests guidelines for the adoption and use of ES and potential directions for future research.

Rethinking Information Privacy In An Age Of Online Transparency, Robert Sprague

Robert Sprague

No abstract provided.

Orwell Was An Optimist: The Evolution Of Privacy In The United States And Its De-Evolution For American Employees, Robert Sprague

Robert Sprague

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the …

Fired For Blogging: Are There Legal Protections For Employees Who Blog?, Robert Sprague

Robert Sprague

No abstract provided.

From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, Robert Sprague

Robert Sprague

No abstract provided.

Internet Privacy And Self-Regulation: Lessons From The Porn Wars, Tom Bell

Tom W. Bell

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civiI Iiberties argued successfully that self -help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech—speech by …