Privacy Law Commons^™

Privacy-Invading Technologies And Recommendations For Designing A Better Future For Privacy Rights, Alexandra Rengel

Intercultural Human Rights Law Review

The concept of privacy has been discussed for centuries by philosophers, anthropologists, sociologists, and legal scholars. The importance that individuals place on privacy is beyond question and transcends geographical, cultural and racial boundaries. Individuals' need for secrecy and private space is so fundamental to forging relationships with others, and to preserving our sense of self, that a society with a complete lack of individual privacy would be unimaginable. A right to privacy protects individuals from having the contents of certain private information made public and regulates the means and manner by which that information is obtained. However, new technologies often …

Personal Environmental Information: The Promise And Perils Of The Emerging Capacity To Identify Individual Environmental Harms, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article begins from the premise that successful regulation of environmentally significant individual behaviors could achieve meaningful environmental benefits and argues that (1) technology is increasingly making information about individual environmental behaviors and associated harms more accessible; (2) better information about environmentally significant individual behaviors could substantially enhance fledgling efforts to regulate those behaviors; and (3) use of technology-enabled personal environmental information in support of regulation will require the resolution of myriad privacy concerns. The Article seeks to generate and inform a discussion about the appropriate balance between access to personal environmental information and privacy by identifying how regulation can …

No Cause Of Action: Video Surveillance In New York City, Olivia J. Greer

Michigan Telecommunications & Technology Law Review

In 2010, New York City Police Commissioner Raymond Kelly announced a new network of video surveillance in the City. The new network would be able to prevent future terrorist attacks by identifying suspicious behavior before catastrophic events could take place. Kelly told reporters, "If we're looking for a person in a red jacket, we can call up all the red jackets filmed in the last 30 days," and "[w]e're beginning to use software that can identify suspicious objects or behaviors." Gothamist later made a witticism of Kelly's statement, remarking, "Note to terrorists: red jackets are not a good look for …

Location-Based Services: Time For A Privacy Check-In, Chris Conley, Nicole Ozer, Hari O'Connell, Ellen Ginsburg, Tamar Gubins

Faculty Scholarship

Need to get directions when you are lost? Want to know if your friends are in the neighborhood? Location-based services – applications and websites that provide services based on your current location – can put this information and more in the palm of your hand.

But outdated privacy laws and varying corporate practices could mean that sensitive information about who you are, where you go, what you do, and who you know end up being shared, sold, or turned over to the government.

Can location-based services protect your privacy? Do they? And what can we do to improve the situation? …

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." …

Cloud Computing: Storm Warning For Privacy?, Nicole Ozer, Chris Conley

Faculty Scholarship

“Cloud computing” - the ability to create, store, and manipulate data through Web-based services - is growing in popularity. Cloud computing itself may not transform society; for most consumers, it is simply an appealing alternative tool for creating and storing the same records and documents that people have created for years. However, outdated laws and varying corporate practices mean that documents created and stored in the cloud may not have the same protections as the same documents stored in a filing cabinet or on a home computer. Can cloud computing services protect the privacy of their consumers? Do they? And …

Privacy 3.0-The Principle Of Proportionality, Andrew B. Serwin

University of Michigan Journal of Law Reform

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone-Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 as …

Coding Privacy, Lilian Edwards

Chicago-Kent Law Review

Lawrence Lessig famously and usefully argues that cyberspace is regulated not just by law but also by norms, markets and architecture or "code." His insightful work might also lead the unwary to conclude, however, that code is inherently anti-privacy, and thus that an increasingly digital world must therefore also be increasingly devoid of privacy. This paper argues briefly that since technology is a neutral tool, code can be designed as much to fight for privacy as against it, and that what matters now is to look at what incentivizes the creation of pro- rather than anti-privacy code in the mainstream …

Privacy And The New Virtualism, Jonathon Penney

Articles, Book Chapters, & Popular Press

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

Book Review, Susan Nevelow Mart

Publications

No abstract provided.

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle Keats Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher’s strict liability standard as undermining economic development, American courts …

Biometrics: Weighing Convenience And National Security Against Your Privacy, Lauren D. Adkins

Michigan Telecommunications & Technology Law Review

The biometric identifier relies on an individual's unique biological information such as a hand, iris, fingerprint, facial or voice print. When used for verification purposes, a "one-to-one" match is generated in under one second. Biometric technology can substantially improve national security by identifying and verifying individuals in a number of different contexts, providing security in ways that exceed current identification technology and limiting access to areas where security breaches are especially high, such as airport tarmacs and critical infrastructure facilities. At the same time, a legitimate public concern exists concerning the misuse of biometric technology to invade or violate personal …

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle K. Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher's strict liability standard as undermining economic development, American courts and …

Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson

Faculty Articles

We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to …

'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes

Michigan Telecommunications & Technology Law Review

The notion of software code replacing legal code as a mechanism to control human behavior--"code as law"--is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of "code as law" on privacy. To what extent is privacy-related "code" being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr

Michigan Law Review

I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.

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 …

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Michigan Law Review

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a …

A Traitor In Our Midst: Is It Your Tivo?, Teresa W. Chan

Vanderbilt Journal of Entertainment & Technology Law

Part I of this Note provides a backdrop of the different aspects of privacy law, focusing on the federal statutory schemes that are applicable to the issue of information gathering and the different possible uses of that information as a violation of privacy rights that have appeared in similar technology cases up to this point in time. This section will also focus on the capabilities of TiVo in more depth.

Part II of the Note examines both of TiVo's questionable actions: first, whether gathering information to sell to advertisers and networks in the form of aggregate data violates privacy rights; …

Information Privacy In Virtual Worlds: Identifying Unique Concerns Beyond The Online And Offline Worlds, Tal Z. Zarksy

NYLS Law Review

No abstract provided.

Computer Law By George S. Takach (Toronto: Irwin Law Inc., 2000, 2nd Edition), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.

Computer Searches And Seizures: Some Unresolved Issues, Susan W. Brenner, Barbara A. Frederiksen

Michigan Telecommunications & Technology Law Review

The goal of this article is to illustrate the issues that arise in the context of computer search and seizures by examining several areas in which the application of Fourth Amendment concepts to computer searches and/or seizures can be problematic. In order to illustrate this point, the article will build on a hypothetical. The hypothetical situation assumes law enforcement officers have lawfully obtained a warrant to search for and seize evidence concerning the commission of one or more crimes. It will also be assumed that computer technology played some role in the commission of these crimes, so computer equipment and …

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 …