Privacy Law Commons^™

Delineating The Legal Framework For Data Protection: A Fundamental Rights Approach Or Data Propertization?, Efe Lawrence Ogbeide

Canadian Journal of Law and Technology

The Charter of Fundamental Rights of the European Union, like other key legal instruments around the globe, grants citizens the right to privacy in Article 7. The Charter, however, further provides for the right to data protection in Article 8. Simply put, the implication of Article 8 of the Charter is that the right to data protection is a fundamental right. The central question in this article is whether data protection indeed qualifies to be categorized as a fundamental right. If not, what other approach(es) to data protection may be implemented?

Legislating Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Comments Of The Cordell Institute On The Prevalence Of Commercial Surveillance And Data Security Practices That Harm Consumers, Neil M. Richards, Woodrow Hartzog, Jordan Francis

Scholarship@WashULaw

These comments are a response to the Federal Trade Commission's 2022 advance notice of proposed rulemaking (“ANPR”) requesting public comment on the prevalence of commercial surveillance and data security practices that harm consumers (Commercial Surveillance ANPR, R111004).

In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

Self-Control Of Personal Data And The Constitution In East Asia, Dongsheng Zang

Articles

No abstract provided.

Use Of Unmanned Aircraft Systems And Regulatory Landscape: Unravelling The Future Challenges In The High Sky, K Kirthan Shenoy, Divya Tyagi

International Journal of Aviation, Aeronautics, and Aerospace

The individuals on the ground nowadays often observe objects distantly hover over the sky, which raises the question of who might be operating the object or what the object might record. Unmanned Aircraft Systems (UAS) or Drones today have quickly penetrated civilian, military, and commercial sectors. The drones or UAS, with the advancement of technology, are now capable of traversing long distances, having long endurance, and having multipurpose functionality. The UAS industry is fast expanding, with trade investment touching the billion-dollar mark in flourishing economies. The advent of the Covid 19 pandemic saw a steep rise in the use of …

Privacy Pretexts, Rory Van Loo

Faculty Scholarship

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace

Northwestern University Law Review

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

Closing The Data Gap: Protecting Biometric Information Under The Biometric Information Privacy Act And The California Consumer Protection Act, Eva-Maria Ghelardi

St. John's Law Review

(Excerpt)

Between May and June of 2014, Stacy Rosenbach bought her son, Alexander, a Six Flags season pass online. She submitted Alexander’s personal information and read that Alexander would complete the sign-up process at the park. No details described what the sign-up process would entail.

After showing his online receipt at Six Flags, Alexander was brought to an office to provide the customary thumb scan. Alexander’s thumb scan, along with the season pass card, was required to permit him to enter the various rides. He was not given any information about how his thumb scan would be stored or used …

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …

Pure Privacy, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy's appeal has grown beyond those authors' wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means. The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Torn Between Institutionalisation & Judicialisation: The Demise Of The Eu-Us Privacy Shield, Elaine Fahey, Fabien Terpan

Indiana Journal of Global Legal Studies

In July 2016, the EU-US (European Union-United States) Privacy Shield came into force, replacing the EU-US Safe Harbour, to address the concerns around data collection and privacy that arose in the case of Schrems v. European Data Commissioner (C-362/14). The Court of Justice of the European Union (CJEU) in its ruling known as Schrems I took a position in defence of privacy in the context of Edward Snowden's revelations on the National Security Agency's (NSA) surveillance programs. This context had already spurred the development of several instruments and enforcement regimes, such as the General Data Protection Regulation (GDPR), adopted in …

Personal Data Privacy And Protective Federal Legislation: An Exploration Of Constituent Position On The Need For Legislation To Control Data Reliant Organizations Collecting And Monetizing Internet-Obtained Personal Data, Giovanni De Meo

Dissertations

In the past twenty years, the business of online personal data collection has grown at the same rapid pace as the internet itself, fostering a multibillion-dollar personal data collection and commercialization industry. Unlike many other large industries, there has been no major federal legislation enacted to monitor or control the activities of organizations dealing in this flourishing industry. The combination of these factors together with the lack of prior research encouraged this research designed to understand how much voters know about this topic and whether there is interest in seeing legislation enacted to protect individual personal data privacy.

To address …

Private Lives At Home And Public Lives In Court: Protecting The Privacy Of Federal Judges' Home Addresses, Hannah Elias Sbaity

Journal of Intellectual Property Law

Targeted murders of federal judges and their families at their private homes date back to May 29, 1979. Most recently, in July 2020, Judge Esther Salas’s only son, Daniel, was murdered and her husband near-fatally shot at their home. Individuals wishing to inflict such harm or death at federal judges’ homes have been able to do so because of federal judges’ publicly available home addresses. Because personally identifying information (PII) is defined differently from statute to statute, home addresses largely remain public information in most states and can be found in real estate records, data broker websites, social media platforms, …

A Deep Dive Into Technical Encryption Concepts To Better Understand Cybersecurity & Data Privacy Legal & Policy Issues, Anthony Volini

Journal of Intellectual Property Law

Lawyers wishing to exercise a meaningful degree of leadership at the intersection of technology and the law could benefit greatly from a deep understanding of the use and application of encryption, considering it arises in so many legal scenarios. For example, in FTC v. Wyndham1 the defendant failed to implement nearly every conceivable cybersecurity control, including lack of encryption for stored data, resulting in multiple data breaches and a consequent FTC enforcement action for unfair and deceptive practices. Other examples of legal issues requiring use of encryption and other technology concepts include compliance with security requirements of GLBA & HIPAA, …

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

The Commercialization Of Crime Solving: Ethical Implication Of Forensic Genetic Genealogy, Hannah Lee

Honors Theses

With the advancement of DNA technology and expansion of direct-to-consumer DNA services, a growing number of cold cases have been solved using a revolutionary new investigative method: familial DNA mapping. While the technique has been lauded by law enforcement as revolutionizing criminal identification, others are concerned by the privacy implications and impact on the family structure. In this thesis I will draw on communitarian, liberal rights, utilitarian, and social justice arguments for and against the practice. I conclude that this method has the potential to increase security and provide justice for victims and families, but absent comprehensive regulation and privacy …

Discussing Privacy In Sec Subpoena Practice After Carpenter V. United States, William A. Ballentine

Chicago-Kent Law Review

No abstract provided.

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …