Privacy Law Commons^™

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 …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Whose Rights Matter More—Police Privacy Or A Defendant’S Right To A Fair Trial?, Laurie L. Levenson

Loyola of Los Angeles Law Review

The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of the people as expressed in the laws and give those accused of crime a fair trial.

– William O. Douglas

Dysregulating The Media: Digital Redlining, Privacy Erosion, And The Unintentional Deregulation Of American Media, Jon M. Garon

Faculty Scholarship

Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook, and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law. Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the …

Post-Pandemic Privacy Law, Tiffany C. Li

Law Faculty Scholarship

COVD-19, the global pandemic that began in 2019, altered how we live our lives in just about every way imaginable. Some of those changes were obvious-for example, those who were fortunate enough to be able to work from home began working online-while other changes were more subtle. The latter category included unprecedented levels of data collection by governments and organizations purporting to collect information that would help stop the pandemic's spread. Given the deadly nature of COVID-19, few would question any public health efforts, no matter their impact on privacy. However, the lack of attention to privacy issues during the …

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany C. Li

Law Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical Al. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency …

Too Big To Protect: A Dodd-Frank Framework For Protecting 21st Century American Consumer Privacy Rights, Stanley A. Marciniak Iii

Duquesne Law Review

No abstract provided.

Cyber-Security, Privacy, And The Covid-19 Attenuation?, Vincent J. Samar

Journal of Legislation

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself …

The Future Of Our Fingerprints: The Importance Of Instituting Biometric Data Protections In Pennsylvania, Julia M. Siracuse

Duquesne Law Review

No abstract provided.

Piercing The Veil: Reconciling Fisa And The State Secrets Privilege In The Schrems Ii Era, Chris Baumohl

American University Law Review

Twenty years after 9/11 and the beginning of the “War on Terror,” access to judicial redress arising out of national security programs remains mired in a labyrinth of procedural hurdles, including the state secrets privilege. Nearly seventy years after the Supreme Court first enunciated the modern state secrets privilege, courts still struggle to articulate a practicable standard that appropriately balances the government’s need to protect its secrets and plaintiffs’ need to vindicate their constitutional rights. This issue is particularly acute in surveillance litigation, where broad construction of the privilege precludes plaintiffs from establishing standing. However, as the Ninth Circuit found …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany C. Li

Loyola University Chicago Law Journal

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency …

"Times They Are A Changin'" - Can The Ad Tech Industry Survive In A Privacy Conscious World?, Meaghan Donahue

Catholic University Journal of Law and Technology

The "ad tech ecosystem" is a web of interconnected technologies and intermediaries that facilitate targeted advertising based on consumer data, and supports the free internet while providing users with promotional content relevant to their interests. However, in recent years, lawmakers and consumer advocates have highlighted the dangers associated with the unregulated use of consumer data for advertising purposes, prompting a flurry of legislative action at both the state and federal levels. These various laws and proposed bills impose new challenges on the ad tech industry--threatening to fundamentally change the way the business operates. However, through innovation and creative thinking, the …

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.

Privacy-As-Property: A New Fundamental Approach To The Right To Privacy And The Impact This Will Have On The Law And Corporations, Sevion Dacosta

CMC Senior Theses

The most popular conception of the right to privacy stems from Warren and Brandeis’s description of privacy as “the right to be left alone.” This theory ultimately points to a more fundamental approach to the right to privacy rooted in property rights. This fundamental approach - which I call privacy-as-property - is what I establish in this paper. I argue that the Lockean concept of property that “every man has a property in his own person” provides the foundation for the right to privacy. Privacy-as-property begins with the fundamental right to control oneself. Because of this intrinsic right, your property …

Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry

Faculty Articles

My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I …

Privacy Beyond Possession: Solving The Access Conundrum In Digital Dollars, Nerenda N. Atako

Vanderbilt Journal of Entertainment & Technology Law

The advent of a retail central bank digital currency (CBDC) could reshape the US payments system. A retail CBDC would be a digital representation of the US dollar in the form of an account or token that is widely accessible to the general public. It would be a third form of US fiat money that is created and issued by the Federal Reserve and complementary to physical cash. CBDC proposals have suggested a myriad of retail CBDC design models with an overwhelming interest in a retail CBDC that either implements a centralized ledger system or some form of a distributed …

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

Legal Opacity: Artificial Intelligence’S Sticky Wicket, Charlotte A. Tschider

Faculty Publications & Other Works

Proponents of artificial intelligence (“AI”) transparency have carefully illustrated the many ways in which transparency may be beneficial to prevent safety and unfairness issues, to promote innovation, and to effectively provide recovery or support due process in lawsuits. However, impediments to transparency goals, described as opacity, or the “black-box” nature of AI, present significant issues for promoting these goals.

An undertheorized perspective on opacity is legal opacity, where competitive, and often discretionary legal choices, coupled with regulatory barriers create opacity. Although legal opacity does not specifically affect AI only, the combination of technical opacity in AI systems with legal opacity …

Ai's Legitimate Interest: Towards A Public Benefit Privacy Model, Charlotte A. Tschider

Faculty Publications & Other Works

Health data uses are on the rise. Increasingly more often, data are used for a variety of operational, diagnostic, and technical uses, as in the Internet of Health Things. Never has quality data been more necessary: large data stores now power the most advanced artificial intelligence applications, applications that may enable early diagnosis of chronic diseases and enable personalized medical treatment. These data, both personally identifiable and de-identified, have the potential to dramatically improve the quality, effectiveness, and safety of artificial intelligence.

Existing privacy laws do not 1) effectively protect the privacy interests of individuals and 2) provide the flexibility …

Meaningful Choice: A History Of Consent And Alternatives To The Consent Myth, Charlotte A. Tschider

Faculty Publications & Other Works

Although the first legal conceptions of commercial privacy were identified in Samuel Warren and Louis Brandeis’s foundational 1890 article, The Right to Privacy, conceptually, privacy has existed since as early as 1127 as a natural concern when navigating between personal and commercial spheres of life. As an extension of contract and tort law, two common relational legal models, U.S. privacy law emerged to buoy engagement in commercial enterprise, borrowing known legal conventions like consent and assent. Historically, however, international legal privacy frameworks involving consent ultimately diverged, with the European Union taking a more expansive view of legal justification for processing …

Law Library Blog (January 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Data As The New Oil: A Slippery Slope Of Trade Secret Implications Greased By The California Consumer Privacy Act, Megan Marie Miller

Cybaris®

Following the European model of the General Data Protection Regulation (GDPR), the state of California implemented the California Consumer Privacy Act (CCPA) on January 1, 2020. The CCPA allows any California consumer to demand to see all of the information that a company has saved on them; consumers can also request a full list of all the third parties that their data is shared with, sold to, and for what commercial purpose. This paper reviews the implications of a new law on the disclosure of trade secrets like client lists and algorithms that manipulate consumers’ data. Ultimately, the issue comes …

Regulating Facial Recognition Technology In An Effort To Avoid A Minority Report Like Surveillance State, Halie B. Peacher

Marquette Intellectual Property & Innovation Law Review

In Steven Spielberg's science fiction film Minority Report, the film focuses on how technology is used in the future, as well as how society uses and understands that technology. Specifically, Minority Report focuses on eye-scanners that allow the police and corporations to track down and identify people on a daily basis. This movie identifies that there is a clear line that must be drawn between an individual's right to privacy and the law enforcement agency's ability to ensure safety. Like the technology in Minority Report, the use of facial recognition technology has led to much debate, mainly focused on privacy …

Covid-19 And The Hipaa Privacy Rule: Asked And Answered, Stacey A. Tovino

Faculty Articles

The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19), raises important and vexing privacy and security issues. Public health officials, law and policy makers, and members of the general public disagree, for example, regarding the amount and type of individually identifiable health data that should be collected, used, and disclosed for public health surveillance, public health investigation, and public health intervention. Stakeholders also diverge in their opinions regarding the sufficiency of federal and state data privacy and security laws. Some stakeholders believe that current statutes and regulations are sufficient to protect individually identifiable …

Private Largess In The Digital Age: Privacy In Reich's The New Property, Raymond H. Brescia

Touro Law Review

No abstract provided.

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.

Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

Scholarship@WashULaw

Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

Protecting Research Data Of Publicly Revealing Participants, Ellen Clayton, B. A. Malin, Kyle J. Mckibbin

Vanderbilt Law School Faculty Publications

Biomedical researchers collect large amounts of personal data about individuals, which are frequently shared with repositories and an array of users. Typically, research data holders implement measures to protect participants’ identities and unique attributes from unauthorized disclosure. These measures, however, can be less effective if people disclose their participation in a research study, which they may do for many reasons. Even so, the people who provide these data for research often understandably expect that their privacy will be protected. We discuss the particular challenges posed by self-disclosure and identify various steps that researchers should take to protect data in these …