Privacy Law Commons^™

Mission Creep: Public Health Surveillance And Medical Privacy, Wendy K. Mariner

Faculty Scholarship

The National Security Agency's domestic surveillance program has parallels in the growth of disease surveillance for public health purposes. This article explores whether laws requiring health providers to report to government names and identifiable information about patients with infectious or chronic diseases may be vulnerable to challenge as an invasion of privacy. A shift in the use of disease surveillance data from investigating disease outbreaks to data mining and analysis for research, budgeting, and policy planning, as well as bioterrorism, tests the boundaries of liberty and privacy. The Supreme Court has not reviewed a disease reporting law. Its few related …

Tied Up In Knotts? Gps And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …

Fixing Fisa For Long War: Regulating Warrantless Surveillance In The Age Of Terrorism, Adam Burton

The University of New Hampshire Law Review

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Katz Is Dead. Long Live Katz, Peter P. Swire

Michigan Law Review

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that "the Fourth Amendment protects people, not places." The concurrence by Justice Harlan announced the new regime - court-issued warrants are required where there is an infringement on a person's "reasonable expectation of privacy." Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that …

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr

Michigan Telecommunications & Technology Law Review

"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments …

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …

Privacy In Confucian And Taoist Thought, Christina B. Whitman

Book Chapters

Only three aspects of the broad concept "privacy" will be explored in this essay: privacy as providing a sphere for intimate personal relationships with family and friends, privacy as freedom from surveillance for purposes of gathering personal information, and privacy as freedom from interference by government or social controls. These concepts describe quite different concerns. They are often grouped together under the single term "privacy," but not without some strain... A comparison between a modern Western value and its counterpart, if any, in very early Confucian and Taoist belief is inevitably somewhat strained. But it serves a purpose. If nothing …

The Constitutionality Of The Foreign Intelligence Surveillance Act Of 1978, Judith B. Anderson

Vanderbilt Journal of Transnational Law

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute …

Police Use Of Cctv Surveillance: Constitutional Implications And Proposed Regulations, Gary C. Robb

University of Michigan Journal of Law Reform

This article evaluates the constitutionality of CCTV "searches." Part I discusses the present uses being made of closed circuit technology and evaluates the merits of the CCTV surveillance system. The critical policy trade-off is the system's effectiveness in combatting crime against the resulting loss of privacy to individual citizens.

Part II considers the constitutional implications of CCTV use in terms of three major doctrines: the Fourth Amendment prohibition against "unreasonable searches and seizures"; the constitutional right of privacy; and the First Amendment guarantees of free speech and association. This part briefly summarizes the state of the law concerning these constitutional …

Pen Registers After Smith V. Maryland, John S. Applegate, Amy Applegate

Articles by Maurer Faculty

No abstract provided.

Westin: Privacy And Freedom, Stanley K. Laughlin Jr.

Michigan Law Review

A Review of Privacy and Freedom by Alan F. Westin

The Criminal's Right Of Privacy

Michigan Law Review

The dissent of Mr. Justice Brandeis in the famed wire tapping case has been of especial interest to those who are acquainted with his article in the Harvard Law Review in 1890 on "The Right of Privacy." The law has witnessed few more fascinating developments than the engrafting of this latter concept into the formula of justice, few more conspicuous examples of creative juristic effort. Concerning it Dean Pound has said: "What may almost be called the classical example (of creative activity) is the paper on the Right of Privacy in which Mr. Justice Brandeis, then at the bar, was …