Privacy Law Commons^™

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster

UF Law Faculty Publications

Investigative reporters and the #MeToo movement exposed the widespread use of nondisclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …

Privacy Implications Of Central Bank Digital Currencies, Jiaying Jiang

UF Law Faculty Publications

One hundred thirty-one countries, representing over 98 percent of the global gross domestic product (GDP), are currently exploring central bank digital currencies (CBDCs), a new form of digital money that is different from privately issued cryptocurrencies and stablecoins. As central banks worldwide grapple with CBDC design options, privacy has become a critical feature and concern. Many central banks, government agencies, nongovernmental organizations (NGOs), think tanks, and even the general public have underscored the importance of privacy in CBDC systems. Moreover, a diverse group of economists, computer scientists, engineers, and legal scholars have embarked on crafting privacy-preserving CBDC designs.

But two …

Introduction: The Risk Of Digitalization: Transforming Government Into A Digital Leviathan, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This paper provides an overview of the threats posed by digitalization, particularly with regard to the public sector. It starts by describing digital risks as true global risks and argues that their scope and severity have not been recognized until now. The most well-known challenges come from the transformation of the private sector (economy, society, and individuals) and the emergence of large private powers that dominate the digital environment (digital feudal lord). However, there are even greater challenges coming from the digitization of government, creating almighty public bodies detached from laws that kept them locked until now.

Ai Regulation In Health Care: How Washington State Can Conquer The New Territory Of Ai Regulation, Natalie Shen

Seattle Journal of Technology, Environmental, & Innovation Law

1. The use of artificial intelligence both generally and in the health care field has exploded over the last decade. AI is now used in the health care field in areas like disease diagnostics, patient engagement, and administrative tasks. In disease diagnostics specifically, AI is being used to make life-altering diagnoses. This technology, however, does not come without its risks. Specifically, inherent bias is deeply rooted in the AI algorithms. This is because humans are inherently bias, and humans are the people creating the AI algorithms. The problem is, however, is that there are no federal regulations to mitigate the risks …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Layered Fiduciaries In The Information Age, Zhaoyi Li

Indiana Law Journal

Technology companies such as Facebook have long been criticized for abusing customers’ personal information and monetizing user data in a manner contrary to customer expectations. Some commentators suggest fiduciary law could be used to restrict how these companies use their customers’ data.1 Under this framework, a new member of the fiduciary family called the “information fiduciary” was born. The concept of an information fiduciary is that a company providing network services to “collect, analyze, use, sell, and distribute personal information” owes customers and end-users a fiduciary duty to use the collected data to promote their interests, thereby assuming fiduciary liability …

Guilty Of Probable Cause: Public Arrest Records And Dignity In The Information Age, Nicholas Thompson

Indiana Journal of Global Legal Studies

The United States is exceptional among Western nations in its treatment of criminal records. Today, an estimated one-third of Americans1 bear the “modern equivalent of branding”: the publicly-accessible criminal record.2 Far from remaining locked in digital limbo, these records serve a variety of purposes, from legitimate law enforcement use to extortion against arrestees seeking to scrub their mugshots from a Google search.3 It would be natural to assume that such records result from an individual’s commission of a crime, for which the individual is duly convicted and then marked with the brand of the state for the transgression. But the …

Private Ownership Of Public Facts: Docudramas, Deals, And Life Story Rights, David Fagundes, Jorge L. Contreras

Faculty Articles

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from …

Life, Liberty, And Data Privacy: The Global Cloud, The Criminally Accused, And Executive Versus Judicial Compulsory Process Powers, Rebecca Wexler

Faculty Scholarship

U.S. policymakers’ responses to a wave of global data privacy laws are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, new global data privacy laws risk cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law …

Privacy For Student-Patients: A Call To Action, Stacey A. Tovino

Emory Law Journal

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, …

Exploring Financial Data Protection And Civil Liberties In An Evolved Digital Age, Amanda Lindner

Fordham Journal of Corporate & Financial Law

There is no comprehensive financial privacy law that can protect consumers from a company’s collection sharing and selling of consumer data. The most recent federal financial privacy law, the Gramm-Leach-Bliley Act (“GLBA”), was enacted by Congress over 20 years ago. Vast technological and financial changes have occurred since 1999, and financial privacy law is due for an upgrade.

As a result, loopholes exist where companies can share financial data without being subject to laws or regulations. Additionally, federal financial privacy related laws provide little to no recourse for consumers to self-remediate with litigation, also known as a private right of …

Prescribing Exploitation, Charlotte A. Tschider

Faculty Publications & Other Works

Patients are increasingly reliant temporarily, if not indefinitely, on connected medical devices and wearables, many of which use artificial intelligence (“AI”) infrastructures and physical housing that directly interacts with the human body. The automated systems that drive the infrastructures of medical devices and wearables, especially those using complex AI, often use dynamically inscrutable algorithms that may render discriminatory effects that alter paths of treatment and other aspects of patient welfare.

Previous contributions to the literature, however, have not explored how AI technologies animate exploitation of medical technology users. Although all commercial relationships may exploit users to some degree, some forms …

Semantics And Sin Tax: Maintaining Autonomy In The Age Of Hyper-Personalization, Stephen Kohn

Mitchell Hamline Law Review

No abstract provided.

The Gdpr And Uk Gdpr And Its Impact On Us Academic Institutions, Leila Halawi, Alpesh Makwana

Publications

This research paper delves into the implications of the General Data Protection Regulation (GDPR) and the United Kingdom (UK) GDPR on academic institutions, shedding light on their significance for organizations and educational establishments handling data from individuals in the European Union (EU) and the UK. Non-compliance with these regulations can lead to substantial penalties. The study focuses specifically on US Higher Education and presents actionable measures that institutions can adopt to enhance compliance, fortify data protection, and safeguard the privacy of individuals.

Gag With Malice, Shaakirrah R. Sanders

Washington and Lee Law Review

This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.

United …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Privacy In The Wild: Why Animals' Informational Privacy Matters, Christopher Wlach

Animal Law Review

As data privacy and security come increasingly into focus among lawmakers, regulators, companies, and consumers, concerns about animals’ privacy have gone largely unmentioned. This Article examines how both wild and domestic animals have informational privacy interests—that is, interests in protecting information about themselves. The Article discusses three examples of how informational privacy for animals is not merely a theoretical concept but directly relates to animals’ broader welfare interests. Finally, this Article discusses why privacy provides a helpful theoretical framework and vocabulary for addressing these animals’ interests.

Learning From Mistakes: A Guide To Expanding The Oversight Board, Kevin Frazier

Catholic University Journal of Law and Technology

More than 4.4 billion people use social media. A few platforms attract a significant number of those users—for example, 2.9 billion people use Facebook, 2.3 billion use YouTube, and 1.2 billion use WeChat. How these major platforms govern themselves with respect to content moderation has an impact on billions of users and may lead to policy changes across other platforms that affect billions more. That is why it is so important to analyze Meta’s Oversight Board—an independent body created for the purpose of “promot[ing] free expression by making principled, independent decisions regarding content on Facebook and Instagram by issuing recommendations …

New Frontiers In Technology: Can Traditional Intellectual Property Rights Laws Be Adapted And Applied To Nfts?, Mariyah S. Wakhariya

Catholic University Journal of Law and Technology

A decade ago, ‘NFTs’ were rarely heard of or known to anyone, unless they worked in or kept up with the tech world. However, they are not new - they have been around for almost two decades. Their popularity has grown over the past few years. ‘NFT’ stands for ‘non-fungible token’. An NFT is a digital file with a unique identity that is verified on a blockchain and is therefore not interchangeable - i.e., a kind of crypto asset, like an authentication certificate for digital artifacts. In theory, NFTs can represent almost any real or intangible property. These days, it …

Privacy For Student-Patients: A Call To Action, Stacey A. Tovino

Faculty Articles

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, …

State V. Mcguire, 273 A.3d 146 (R.I. 2022), Madeleine Fenderson

Roger Williams University Law Review

No abstract provided.

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson

Publications

No abstract provided.

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Minding Rights: Mapping Ethical And Legal Foundations Of ‘Neurorights’, Sjors Ligthart, Marcello Ienca, Gerben Meynen, Fruzsina Molnar-Gabor, Roberto Andorno, Christoph Bublitz, Paul Catley, Lisa Claydon, Thomas Douglas, Nita A. Farahany, Joseph J. Fins, Sara Goering, Pim Haselager, Fabrice Jotterand, Andrea Lavazza, Allan Mccay, Abel Wajnerman Paz, Stephen Rainey, Jesper Ryberg, Philipp Kellmeyer

Faculty Scholarship

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation …