Privacy Law Commons^™

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 …

The Scope And Potential Of Ftc Data Protection, Woodrow Hartzog, Daniel J. Solove

Faculty Scholarship

For more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?

In this Article, we address the issue of the scope of FTC authority in the areas of …

Unfair And Deceptive Robots, Woodrow Hartzog

Faculty Scholarship

Robots, like household helpers, personal digital assistants, automated cars, and personal drones are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety and finances. Robots also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

The thesis of the Article is that the FTC’s grant of authority and …

Book Review. Balancing Privacy And Free Speech: Unwanted Attention In The Age Of Social Media By Mark Tunick, Kimberly Mattioli

Articles by Maurer Faculty

No abstract provided.

Internet Balkanization Gathers Pace: Is Privacy The Real Driver?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

Consumer Cloud Robotics And The Fair Information Practice Principles: Recognizing The Challenges And Opportunities Ahead, Andrew Proia, Drew Simshaw, Kris Hauser

Scholarly Works

Rapid technological innovation has made commercially accessible consumer robotics a reality. At the same time, individuals and organizations are turning to "the cloud" for more convenient and cost-effective data storage and management. It seemed only inevitable that these two technologies would merge to create cloud robotics, "a new approach to robotics that takes advantage of the Internet as a resource for massively parallel computation and sharing of vast data resources." By making robots lighter, cheaper, and more efficient, cloud robotics could be the catalyst for a mainstream consumer robotics marketplace. However, this new industry would join a host of modern …

Private Letters And The Law: Edith Wharton’S Questions About Ownership And The Right To Publish Private Letters, Deborah Hecht

Touro Law Review

No abstract provided.

Cookie Monster: Balancing Internet Privacy With Commerce, Technology And Terrorism, Nichoel Forrett

Touro Law Review

No abstract provided.

Rediscovering Trespass: Towards A Regulatory Approach To Defining Fourth Amendment Scope In A World Of Advancing Technology, Martin R. Gardner

Buffalo Law Review

No abstract provided.

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.

The Creation Of Hipaa Culture: Prioritizing Privacy Paranoia Over Patient Care, Jessica Jardine Wilkes

BYU Law Review

No abstract provided.

Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, Stephen Wagner

Duke Law & Technology Review

Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have struggled to keep pace with a changing technological landscape. Indeed, courts around the country have issued a disparate array of holdings on the issue of warrantless cell phone tracking. This lack of judicial uniformity has led to confusion for both law enforcement agencies and the public alike. In order to protect reasonable expectations of privacy in the twenty-first century, Congress should pass legislation …

Regulating Aerial Photography And Videography Proportionately: Some Thoughts On The Sal Seminar “Droning On About Journalism – Remotely Piloted Aircraft, Newsgathering, And Law”, Siyuan Chen

Research Collection Yong Pung How School Of Law

The concept and practice of aerial photography and videography have been around for some time. But it was only in the last few years that such media production via remote means has achieved mainstream use. The convergence of cutting-edge technological developments in gyroscopic gimbals, far-range wireless transmissions, GPS-enablement in stabilisation, compact devices producing digital image quality and so forth has led to the proliferation of affordable camera-carrying “drones” that even hobbyists can pilot reasonably well with ease. Thus far, there have not been any reports of serious mishaps involving the use of these rotor-propelled copters. However, the controversial appellation inaccurately …

License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour

Seattle University Law Review

Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to …

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 …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbullying Laws, Emily F. Suski

Faculty Publications By Year

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Procreating From Prison: Evaluating British Prisoners' Right To Artificially Inseminate Their Wives Under The United Kingdom's New Human Rights Act And The 2001 Mellor Case, Pollybeth Proctor

Georgia Journal of International & Comparative Law

No abstract provided.

Loud Talk About A Quiet Issue: The International Atomic Energy Agency's Struggle To Maintain The Confidentiality Of Information Gained In Nuclear Facility Inspections, Alison Van Lear

Georgia Journal of International & Comparative Law

No abstract provided.

Interview On The Black Box Society, Lawrence Joseph, Frank A. Pasquale

Faculty Scholarship

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?

Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only …

Summary Of Franchise Tax Board Of The State Of California V. Hyatt, 130 Nev. Adv. Op. 71, Stacy Newman, Jennifer Odell, Jaymes Orr, Patrick Phippen

Nevada Supreme Court Summaries

The Court (1) affirmed the intentional tort and bad faith exceptions to discretionary-function immunity under NRS 41.032; (2) recognized the common law tort of publicity in a false light; (3) adopted the sliding-scale approach to proving a claim of intentional infliction of emotional distress; (4) determined comity does not demand granting immunity from suit to foreign state government agencies if immunity would be available under that state’s laws, but not under Nevada law; and (5) determined comity does not require extending statutory caps to foreign state government agencies even if provided by law to Nevada government agencies.

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.

Maryland V. King And The Road Already Traveled: How The United Kingdome Tried--And Failed--To Balance State Interests With Privacy Rights, Courtney Coons Poole

Georgia Journal of International & Comparative Law

No abstract provided.

Minding Your Meds: Balancing The Needs For Patient Privacy And Law Enforcement In Prescription Drug Monitoring Programs, Devon T. Unger

West Virginia Law Review

No abstract provided.

Putting The Brakes On Driver Privacy: Black Boxes, Data Collection, And The Fourth Amendment, Thayer Case

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Doctor, Doctor, Mr. M.D.: Dr./Patient Privilege In Mt, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

The Meaning And Scope Of Personal Data Under The Singapore Data Protection Act, Warren B. Chik, Keep Ying Joey Pang

Research Collection Yong Pung How School Of Law

It is important to examine and determine the meaning of “personal data” as it is the subject matter of the Singapore Data Protection regime. What constitutes “personal data” determines the scope of the Personal Data Protection Act. Although it is defined under the Act, the experience in other jurisdictions has shown that the elements of that (and other forms of ) definition can still give rise to some difficulty in its application to specific cases. In this paper, the authors aim to provide some guidance and recommendations for the interpretation of “personal data” within the context of legislative intent and …

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 …

The Pclob On Human Rights & 702: Punt Or Long Game?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Systematic Ict Surveillance By Employers: Are Your Personal Activities Private?, Arlene J. Nicholas

Faculty and Staff - Articles & Papers

This paper reviews the various methods of information and communications technology (ICT) that is used by employers to peer into the work lives and, in some cases, private lives of employees. Some of the most common methods – such as computer and Internet monitoring, video surveillance, and global positioning systems (GPS) – have resulted in employee disciplines that have been challenged in courts. This paper provides background information on United States (U.S.) laws and court cases which, in this age of easily accessible information, mostly support the employer. Assessments regarding regulations and policies, which will need to be continually updated …

Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the mere evidence rule in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the object of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search might lead to evidence of wrongdoing triggers a very different inquiry than probable cause to believe that a search will produce evidence of criminal activity. The failure to address the constraints that should be imposed on …