Privacy Law Commons^™

Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake

Scholarship@WashULaw

This Article is an explanation of some of the key features of American privacy law for a general audience. In particular, it tries to explain American privacy law against the critique that because the US currently lacks a European-style privacy law, the United States lacks much in the way of privacy law. We argue that the lack of a European-style data protection law in the United States is not the end of the analysis. This article therefore offers a basic roadmap to American privacy law for the uninitiated. In order to understand American privacy, we believe that it is important …

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 …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

Why Govern Broken Tools?, Ryan Calo

Articles

In Assessing the Governance of Digital Contact Tracing in Response to COVID-19: Results of a Multi-National Study, Brian Hutler et al. ably compare two approaches to the governance of digital contract tracing (DCT). In this brief essay, I want to examine to what extent governance actually played a meaningful role in the failure of DCT. If DCT failed primarily for other reasons, then the authors’ normative suggestion to pursue “a new governance approach … for designing and implementing DCT technology going forward” may be misplaced.

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie Suk

Faculty Scholarship

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. …

On The Propertization Of Data And The Harmonization Imperative, Luis Miguel M. Del Rosario

Fordham Law Review

The digital age has paved the way for unforeseen and unconscionable harms. Recent experiences with security breaches, surveillance programs, and mass disinformation campaigns have taught us that unchecked data collection, use, retention, and transfer have the potential to affect everything from health-care access to national security. And they have shown the growing need for a solution that addresses this proliferation of intangible collective harms. This Note champions data propertization—the process of establishing a bundle of rights in data comparable to those that comprise property interests—as the proper method for preventing and redressing data harms. More specifically, this Note analyzes Illinois’s …

Contracts Formed By Software: An Approach From The Law Of Mistake, Vincent Ooi

Research Collection Yong Pung How School Of Law

A ‘Contracting Problem’ arises when software is used to autonomously enter into contracts without human input. Questions arise as to how and whether there can be an expression of an objective intention to be legally bound. This article considers three leading solutions to the Contracting Problem. The ‘Mere Tools Theory’, which views software as ‘mere tools’ of communication, is too harsh as it binds users to any software malfunction. The Agency Approach, which treats software as Electronic Agents, capable of contracting on behalf of their users, is untenable as it ascribes unrealistic characteristics to software. The article submits that the …

Debunking The Myth That Police Body Cams Are Civil Rights Tool, Scott Skinner-Thompson

Publications

No abstract provided.

The Case For Data Privacy Rights (Or 'Please, A Little Optimism'), Margot E. Kaminski

Publications

No abstract provided.

Introduction: Privacy Studies, Surveillance Law, Scott Skinner-Thompson

Publications

This Dialogue section examines perspectives on how privacy law scholarship and surveillance scholarship can be further enriched with more critical reflection and discussion between the disciplines and includes valuable contributions from thought leaders in each field.

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 …

Privacy, Network Effects, And Law Enforcement: The Gap Between Technology And The Law, Adriena Clifton

Seattle Journal for Social Justice

No abstract provided.

Table Of Contents

Seattle University Law Review

Table of Contents

Masthead, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

Table Of Contents, Lead Article Editor

Catholic University Journal of Law and Technology

No abstract provided.

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

Articles

No abstract provided.

The Hidden Harms Of Privacy Penalties, Mary D. Fan

Articles

How to frame privacy penalties to protect our personal information is an important question as demands for legislation and proposals proliferate. The predominant assumption in calls for a comprehensive consumer privacy regime is that regulation and penalties arm the consumer David against Goliath businesses. Missing in the focus on powerful companies is attention to the potential harms of expanding privacy penalties for small-fry individuals and entities, especially from disfavored or marginalized groups. This article is the first to illuminate the regressive risks of privacy penalties, showing how broad privacy penalties can become tools for harassment of small businesses and individuals …

The Wild West Of Data Privacy: Why Rhode Island Needs To Enact Comprehensive Legislation To Protect Consumers’ Data, Candace Quinn

Roger Williams University Law Review

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 …

Onlife Harms: Uber And Sexual Violence, Amanda Turnbull

Canadian Journal of Law and Technology

Uber markets itself as a technology company that is managed primarily by ML algorithms with the support of human engineers. Yet, in its 2019 Report, the role that its technology played in relation to sexual violence is, for all intents and purposes, absent. Likewise, solutions dealing specifically with the role of technology in facilitating gender-based violence are also missing from the series of initiatives in which Uber has invested that are aimed at preventing sexual violence. Uber was not sufficiently rigorous in defining the problem it was trying to solve. It was a missed opportunity that has resulted in continued …

Bringing Section 8 Home: An Argument For Recognizing A Reasonable Expectation Of Privacy In Metadata Collected From Smart Home Devices, Ana Qarri

Canadian Journal of Law and Technology

Internet of Things devices (also known as smart home devices) are a fast-growing trend in consumer home electronics. The information collected from these devices could prove very useful to law enforcement investigations. These individual pieces of metadata — the collection of which might appear harmless on its face — can be highly revealing when combined with other metadata or information otherwise available to law enforcement. This article builds an argument in favour of recognizing a reasonable expectation of privacy in metadata collected from smart home devices under section 8 of the Canadian Charter of Rights and Freedoms. This article presents …

Let The Machines Do The Dirty Work: Social Media, Machine Learning Technology And The Iteration Of Racialized Surveillance, Subhah Wadhawan

Canadian Journal of Law and Technology

Post 9/11, where the current social and cultural temperature has constructed Islam as interchangeable with terrorism, digital intermediaries have responded with increased censorship of speech related to, emerging from, or advocating Islamic ideology. At the heart of this paper is the argument that digital intermediaries have relied on the opaqueness of machine learning technology (‘‘MLT”) to realize racialized surveillance, whereby speech concerning Islamic content has been disproportionally censored. This paper maps out how inherent biases concerning the ideology of Islam have been interwoven into the coding and machine learning used by the major tech giants. As a result of the …

Are Tents A 'Home'? Extending Section 8 Privacy Rights For The Precariously Housed, Sarah Ferencz, Alexandra Flynn, Nicholas Blomley, Marie-Eve Sylvestre

All Faculty Publications

The home, for most of us, is an obvious zone to assert privacy and property rights. However, this is not the case for those whose control of residential space is precarious. Our paper focuses on privacy rights under the Canadian constitution for those living in tents and, specifically, the judicial rejection of a tent as a home garnering legal protection under the Charter of Rights and Freedoms. We focus on a 2018 case from British Columbia, R. v. Picard, the only judicial decision that we could locate that has explored this question. In holding that the tent is …

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 …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

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 …

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …