Privacy Law Commons^™

Can The Government Deport Immigrants Using Information It Encouraged Them To Provide?, Amanda Frost

Scholarly Articles in Law Reviews & Journals

This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any …

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Clicks And Tricks: How Computer Hackers Avoid 10b-5 Liability, Ryan H. Gilinson

Brooklyn Law Review

This note argues that computer hackers who sell inside information instead of trading on it themselves, referred to in the note as hacker-sellers, avoid liability under Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5. Rule 10b-5 criminalizes the use of a manipulative or deceptive device “in connection with the purchase or sale of any security.” Hacker-sellers fall outside the scope of this rule for two reasons. First, the type of hacking employed by hacker-sellers is not always “deceptive,” and only the forms of hacking which deceive the computer into thinking an authorized user is seeking access are …

“Big Brother” In The Private Sector: Privacy Threats Under The Faa’S New Civilian Drone Regulations, Sean M. Nolan

Brooklyn Law Review

The Federal Aviation Administration’s (FAA) recent promulgation of civilian drone regulations triggered the growth of a new consumer industry. As this industry grows, so do the privacy threats it presents. Drones with advanced technological capabilities can record and store a wide range of data, without the consent of the data’s source. Privileged information captured by drones—whether for innocent purposes or not—is in turn vulnerable to misappropriation, as civilian drones are far from hack-proof. Despite the likely privacy implications of large-scale drone legalization, the FAA’s new regulations do not include any privacy protections. This note provides a criticism of the FAA’s …

Wearables And Personal Health Data: Putting A Premium On Your Privacy, Alexandra Troiano

Brooklyn Law Review

Recently, insurance companies have gained greater insight into their policyholders’ health habits by incentivizing them to take steps towards a healthier lifestyle through the use of wearable devices. This note addresses the recent trend of insurance companies that offer discounts to policyholders who use Fitbits, or other wearable wristbands, to track and report health information. At first glance, this idea seems like a win-win for insurance companies and policyholders–insurance companies can reduce risk by encouraging healthier habits for their policyholders, and policyholders receive discounts on their health insurance. Despite this synergy, however, this type of program threatens personal privacy, particularly …

Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy

Brooklyn Law Review

The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is …

Democratic Surveillance, Mary Anne Franks

Articles

No abstract provided.

"Revenge Porn" Reform: A View From The Front Lines, Mary Anne Franks

Articles

The legal and social landscape of "revenge porn" has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the ternm "revenge porn." As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; federal criminal legislation on the issue had been introduced in Congress; Google, Facebook, and Twitter had banned nonconsensual pornography from their platforms; and the term "revenge porn" had been added to the Merriam- Webster Dictionary. I have had the privilege of playing a role in many …

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele E. Gilman, Karen Levy, Alice Marwick

All Faculty Scholarship

This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions …

The Price Of Free Mobile Apps Under The Video Privacy Protection Act, Suzanne L. Riopel

American University Business Law Review

No abstract provided.

Cloudy With A Chance Of Abused Privacy Rights: Modifying Third-Party Fourth Amendment Standing Doctrine Post-Spokeo, Sarah E. Pugh

American University Law Review

No abstract provided.

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

Faculty Articles

In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

After The Gold Rush: The Boom Of The Internet Of Things, And The Busts Of Data-Security And Privacy, Dalmacio V. Posadas Jr.

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article addresses the impact that the lack of oversight of the Internet of Things has on digital privacy. While the Internet of Things is but one vehicle for technological innovation, it has created a broad glimpse into domestic life, thus triggering several privacy issues that the law is attempting to keep pace with. What the Internet of Things can reveal is beyond the control of the individual, as it collects information about every practical aspect of an individual’s life, and provides essentially unfettered access into the mind of its users. This Article proposes that the federal government and the …

Simon Didn't Say: When Reconstruction Of A Private Search Goes Awry Under The Private Search Doctrine, John G. Chambers

Georgia Law Review

A privateparty conducting an unreasonablesearch of an
individual need not fear the Fourth Amendment as the
proscriptions therein are applicable against only the
government. The government, however, need not fear the
Fourth Amendment where it replicates that private party's
unreasonable search. As such, the Fourth Amendment is
not offended where the government directs the private

party to "reconstruct" its initial search. This
reconstruction doctrine breeds many questions in
application, particularly in the digital context. In
grappling with these questions, this Note demonstrates
that the current law provides no satisfying answers. It
proposes a new test to assess reconstructed private party …

Keeping Up With New Legal Titles, Franklin L. Runge

Law Faculty Scholarly Articles

In this book review, Franklin L. Runge discusses The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age (2016) by Laura K. Donohue.

Little Things And Big Challenges: Information Privacy And The Internet Of Things, Hillary Brill, Scott Jones

American University Law Review

The Internet of Things (loT), the wireless connection of devices to ourselves, each other, and the Internet, has transformed our lives and our society in unimaginable ways. Today, billions of electronic devices and sensors collect, store, and analyze personal information from how fast we drive, to how fast our hearts beat, to how much and what we watch on TV. Even children provide billions of bits of personal information to the cloud through "smart" toys that capture images, recognize voices, and more. The unprecedented and unbridled new information flow generated from the little things of the loT is creating big …

Sharenting: Children's Privacy In The Age Of Social Media, Stacey B. Steinberg

UF Law Faculty Publications

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These …

Lessons Learned Too Well: Anonymity In A Time Of Surveillance, A. Michael Froomkin

Articles

It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity-one of the two most important tools that protect online communicative freedom-is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.

This Article traces …

From Blockbuster To Mobile Apps—Video Privacy Protection Act Of 1988 Continues To Protect The Digital Citizen, Ann Stehling

SMU Law Review

No abstract provided.

Cybersecurity, Identity Theft, And Standing Law: A Framework For Data Breaches Using Substantial Risk In A Post-Clapper World, James C. Chou

American University National Security Law Brief

No abstract provided.

The Law Of Cyber Warfare: Restrictions, Opportunities And Loopholes, Nicholas Tsagourias

Canadian Journal of Law and Technology

The article considers the applicability of existing international rules on the use of force to cyber attacks and assesses their effectiveness. The author’s conclusion is that the current regime on the use of force fails to capture the particularities of cyber attacks and for this reason he makes some tentative proposals for enhancing security in this area.

The Use Of Information And Communications Technology In Criminal Procedure In The Usa, Stephen C. Thaman

All Faculty Scholarship

In this chapter, the author discusses the three types of criminal surveillance and the subsequent data mining used to synthesize and compare the results of surveillance techniques. In addition, the author examines how the aforementioned procedures should be viewed in light of United States case law involving the privacy of American citizens.

The Rise Of Cybersecurity And Its Impact On Data Protection, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

Legal And Ethical Implications Of Athletes' Biometric Data Collection In Professional Sport, Barbara Osborne, Jennie L. Cunningham

Marquette Sports Law Review

None

Counteracting Diminished Privacy In An Augmented Reality: Protecting Geolocation Privacy, Diana Martinez

Loyola of Los Angeles Law Review

No abstract provided.

Who's Driving You? Driver Data Remains Unprotected Under Coppa And Shine The Light, Marisa Tashman

Loyola of Los Angeles Law Review

As our lives become more driven by technology, California’s privacy laws fall short of protecting our personally identifiable information. Vehicles in particular present an increasing privacy concern, as our automobiles become more computer and less car. Cars today have increasingly sophisticated capabilities, stemming from connected technology and sensors, and their ability to capture geolocation and biometric data. This data can be used to make inferences about drivers’ behavioral patterns and daily habits. This Article analyzes whether California’s privacy laws—California Online Privacy Protection Act (“COPPA”) and Shine the Light—adequately address privacy concerns regarding driver data collected by the connected car. This …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …