Privacy Law Commons^™

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

Privacy's Trust Gap, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

It can be easy to get depressed about the state of privacy these days. In an age of networked digital information, many of us feel disempowered by the various governments, companies, and criminals trying to peer into our lives to collect our digital data trails. When so much is in flux, the way we think about an issue matters a great deal. Yet while new technologies abound, our ideas and thinking — as well as our laws — have lagged in grappling with the new problems raised by the digital revolution. In their important new book, Obfuscation: A User’s Guide …

Knowledge And Fourth Amendment Privacy, Matthew Tokson

Northwestern University Law Review

This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. From early decisions dealing with automobile searches to recent cases involving advanced information technologies, courts have relied on assessments of knowledge in a wide variety of Fourth Amendment contexts. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own.

This Article fills that gap. It starts by identifying the characteristics of Fourth Amendment knowledge. It finds, …

Legitimate Invasions: What Ontario Can Learn From The History Of The Consumer Reporting Act, Eliie Marshall

Canadian Journal of Law and Technology

The growth of modern surveillance has attracted great public and scholarly interest. As Justice Abella recently noted in Douez v. Facebook, the Internet has transformed the potential harms flowing from an unjustified invasion of one’s personal information. Most analyses of the associated risks, however, imply that the techniques and motivations for surveillance are new. In fact, tactics for collecting and exchanging information about individuals to gain power over those individuals are well documented since time immemorial. From William the Conquerer’s Domesday Book to IBM’s first census tabulating machine, the advantage gained through data sharing has greatly benefited the state. The …

Never Alone: Why The Inevitable Influx Of Drones Necessitates A New Fourth Amendment Standard That Adequately Protects Reasonable Expectations Of Privacy, Paul Burgin

University of Baltimore Law Review

In June 2011, North Dakota cattle rancher Rodney Brossart became the first American to be arrested with the aid of a drone (Unmanned Aircraft System(s) or UAS) operated by law enforcement. Six cows found their way onto Brossart's property, and he refused to turn them over to law enforcement officials. Brossart and a few family members chased police officers off of his property at gunpoint, and police later returned with a warrant and SWAT team. A sixteen-hour standoff ensued until police called in the assistance of a UAS to pinpoint Brossart's exact location. Shortly thereafter, SWAT officers rushed in, tased, …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Cybersecurity And Law Enforcement: The Cutting Edge : Symposium, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Schrems And The Faa’S “Foreign Affairs” Prong: The Costs Of Reform, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Eliminating The No Number, No List Response; Keeping The Cia Within The Scope Of The Law Amidst America's Global War On Terror, Joseph Meissner

Nevada Law Journal

No abstract provided.

Standing And Covert Surveillance, Christopher Slobogin

Pepperdine Law Review

This Article describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the …

Spying Inc., Danielle K. Citron

Faculty Scholarship

The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app can provide continuous access to the phone owner’s calls, texts, snapchats, photos, calendar updates, and movements. Stalking apps destroy the privacy and confidentiality of cell phone activities. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners. Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious …

The Fisa Court And Article Iii, Stephen I. Vladeck

Washington and Lee Law Review

No abstract provided.

Defining "Foreign Affairs" In Section 702 Of The Fisa Amendments Act: The Virtues And Deficits Of Post-Snowden Dialogue On U.S. Surveillance Policy, Peter Margulies

Washington and Lee Law Review

No abstract provided.

Surveillance As Loss Of Obscurity, Woodrow Hartzog, Evan Selinger

Washington and Lee Law Review

No abstract provided.

Sacrificing Privacy For Convenience: The Need For Stricter Ftc Regulations In An Age Of Smartphone Surveillance, Ashton Mckinnon

Journal of the National Association of Administrative Law Judiciary

This comment aims to focus on the most frequently used connector that consumers treasure not only for convenience but also as a lifelong necessity - the smartphone. The FTC needs to enforce federally mandated guidelines that will allow the consumer to use technology without the technology using the consumer. Part II of this comment focuses on the type of information that can be collected by various companies, service providers, and agencies from an individual's smartphone, and the intentions of these collectors behind use of this information. Part III evaluates how applications (apps) contribute to this scheme, and, specifically, apps' recordkeeping …

The Surveillance State: Do License Plate Readers Impinge Upon Americans' Civil Liberties?, Jourdin Hermann

Themis: Research Journal of Justice Studies and Forensic Science

The boundaries that delineate public from private sphere have challenged our political system’s foundations since its origination. License plate readers (LPRs), a tool used by law enforcement and private businesses, cause citizens and their government to question the criteria separating public and private information. While police and repossession agencies contend that license plate readers aid their work, the American Civil Liberties Union (ACLU) argues that surveillance equipment interferes with an individual’s right to privacy. Addressing such privacy concerns requires the public to hold its government accountable by petitioning for limits on LPR use and data retention. LPRs also pose unique …

Corporate Avatars And The Erosion Of The Populist Fourth Amendment, Avidan Cover

Faculty Publications

The current state of Fourth Amendment jurisprudence leaves it to technology corporations to challenge court orders, subpoenas, and requests by the government for individual users’ information. The third-party doctrine denies people a reasonable expectation of privacy in data they transmit through telecommunications and Internet service providers. Third-party corporations become, by default, the people’s corporate avatars. Corporate avatars, however, do a poor job of representing individuals’ interests. Moreover, vesting the Fourth Amendment’s government-oversight functions in corporations fails to cohere with the Bill of Rights’ populist history and the Framers’ distrust of corporations.

This article examines how the third-party doctrine proves unsupportable …

The Un-Territoriality Of Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

From Anonymity To Identification, A. Michael Froomkin

Articles

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational …

Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements, A. Michael Froomkin

Articles

Encroachments on privacy through mass surveillance greatly resemble the pollution crisis in that they can be understood as imposing an externality on the surveilled. This Article argues that this resemblance also suggests a solution: requiring those conducting mass surveillance in and through public spaces to disclose their plans publicly via an updated form of environmental impact statement, thus requiring an impact analysis and triggering a more informed public conversation about privacy. The Article first explains how mass surveillance is polluting public privacy and surveys the limited and inadequate doctrinal tools available to respond to mass surveillance technologies. Then, it provides …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Regulating Real-World Surveillance, Margot E. Kaminski

Publications

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private …

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

Articles

Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

Can Americans Resist Surveillance?, Ryan Calo

Articles

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Surveillance As Loss Of Obscurity, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Everyone seems concerned about government surveillance, yet we have a hard time agreeing when and why it is a problem and what we should do about it. When is surveillance in public unjustified? Does metadata raise privacy concerns? Should encrypted devices have a backdoor for law enforcement officials? Despite increased attention, surveillance jurisprudence and theory still struggle for coherence. A common thread for modern surveillance problems has been difficult to find.

In this article we argue that the concept of ‘obscurity,’ which deals with the transaction costs involved in finding or understanding information, is the key to understanding and uniting …

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Frank Pasquale, Danielle K. Citron

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Self, Privacy, And Power: Is It All Over?, Richard Warner, Robert H. Sloan

All Faculty Scholarship

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 …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole Jacoby

Georgia Journal of International & Comparative Law

No abstract provided.

Panvasive Surveillance, Political Process Theory And The Nondelegation Doctrine, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should develop the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely's political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement-large-scale police actions that are not based on individualized suspicion-and exposes the incoherence of …