Legal Studies Commons^™

Trusting Big Data Research, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Although it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.

Some scholars and commentators have proposed review …

The Third-Party Doctrine And The Future Of The Cloud, Neil M. Richards

Scholarship@WashULaw

When the government seeks electronic documents held in the cloud, what legal standard should apply? This simple question raises fundamental questions about the future of our civil liberties in the digital world. In a series of cases, government lawyers have argued that information shared with digital intermediaries—including emails and cloud-stored documents—can be seized without a warrant. Their argument rests upon a controversial Fourth Amendment principle known as the “Third-Party Doctrine,” which maintains that information shared even with trusted “third parties” loses a reasonable expectation of privacy under the Fourth Amendment, and with it, the protection of the warrant requirement. Criminal …

Secret Government Searches And Digital Civil Liberties, Neil M. Richards

Scholarship@WashULaw

In Secret Government Searches and Digital Civil Liberties, Neil Richards tackles the issue of what he describes as “secret government searches”—namely, examples of government surveillance that remain a secret to the search target. These can be physical or digital, carried out with a warrant or without, and unknown to everyone but the government or facilitated by a private company that is prohibited from notifying the target. Richards places these secret searches in historical, technological, and constitutional context and argues that they are unprecedented, historically and technologically, and inconsistent with key constitutional values, including freedom of thought, freedom of expression, and …

A Cyber Forensics Needs Analysis Survey: Revisiting The Domain's Needs A Decade Later, Vikram S. Harichandran, Frank Breitinger, Ibrahim Baggili, Andrew Marrington

Electrical & Computer Engineering and Computer Science Faculty Publications

The number of successful cyber attacks continues to increase, threatening financial and personal security worldwide. Cyber/digital forensics is undergoing a paradigm shift in which evidence is frequently massive in size, demands live acquisition, and may be insufficient to convict a criminal residing in another legal jurisdiction. This paper presents the findings of the first broad needs analysis survey in cyber forensics in nearly a decade, aimed at obtaining an updated consensus of professional attitudes in order to optimize resource allocation and to prioritize problems and possible solutions more efficiently. Results from the 99 respondents gave compelling testimony that the following …

In-The-Wild Residual Data Research And Privacy, William B. Glisson, Tim Storer, Andrew Blyth, George Grispos, Matt Campbell

Journal of Digital Forensics, Security and Law

As the world becomes increasingly dependent on technology, researchers in both industry and academia endeavor to understand how technology is used, the impact it has on everyday life, the artifact life-cycle and overall integrations of digital information. In doing so, researchers are increasingly gathering 'real-world' or 'in-the-wild' residual data, obtained from a variety of sources, without the explicit consent of the original owners. This data gathering raises significant concerns regarding privacy, ethics and legislation, as well as practical considerations concerning investigator training, data storage, overall security and data disposal. This research surveys recent studies of residual data gathered in-the-wild and …

How Should The Law Think About Robots?, Neil M. Richards, William D. Smart

Scholarship@WashULaw

The robots are coming. We don’t mean this in a scary, apocalyptic way, like in The Terminator or Battlestar Galactica, or in a tongue-in-cheek way, like in the Flight of the Conchords song “The Humans are Dead.” What we mean is this: Robots and robotic technologies are now mature enough to leave the research lab and come to the consumer market in large numbers. These early technologies are just the start, and we might soon be witnessing a personal robotics revolution. These systems have the potential to revolutionize our daily lives and to transform our world in ways even more …

Big Data And The Future For Privacy, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

In our inevitable big data future, critics and skeptics argue that privacy will have no place. We disagree. When properly understood, privacy rules will be an essential and valuable part of our digital future, especially if we wish to retain the human values on which our political, social, and economic institutions have been built. In this paper, we make three simple points. First, we need to think differently about "privacy." Privacy is not merely about keeping secrets, but about the rules we use to regulate information, which is and always has been in intermediate states between totally secret and known …

The Atlantic Divide On Privacy And Speech, Neil M. Richards, Kirsty Hughes

Scholarship@WashULaw

When does a right to privacy become a right of censorship? Conversely when does freedom of speech become a carte blanche to violate the dignity and autonomy of others? Discussions of privacy throughout the world frequently boil down to these questions. Despite the parallel relationships between privacy and speech in the United Kingdom and America, and despite their shared legal heritage, the two legal systems have struck the balance in radically different ways. In the United States, decisions balancing privacy and the First Amendment have invariably favoured the free speech interest, at least where a press defendant published lawfully-obtained “newsworthy” …

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

A Comparative Analysis Of The Usa Patriot Act Of 2001 To The Usa Freedom Act Of 2015: Balancing Security With Liberty, Richard L. Russo

HIM 1990-2015

Freedom and safety are two ideals that American citizens value greatly; however, the balance between privacy and security determines whether or not both can be achieved in a reasonable manner. Security and privacy are not mutually exclusive; however, they tend to exhibit an inverse correlation with regards to maintaining individual liberties. Security and privacy are highly beneficial, but when one is given too much weight, the other most often suffers. When the United States citizens are given too much privacy through regulations, the citizens risk their well-being by not allowing the government the ability to prevent dangerous activities being done …

Wisconsin School For Girls Inmate Record Books: A Case Study Of Redacted Digitization, Eric Willey, Laura Farley

Faculty and Staff Publications – Milner Library

The Wisconsin School for Girls collection housed in the Wisconsin Historical Society (WHS) archives contains a variety of documents from the institution’s period of operation. Inmates who were admitted to the institution were predominately juvenile females at the time of the records’ creation; because of this, the contents of the records are protected by Wisconsin state statutes, which mandate restricted access for patrons as well as limitations on the use of the information contained within the records. This article examines how the restrictions on the collection continue to protect the privacy of the inmates and their descendants, what procedures WHS …

Information Privacy Law Scholars' Brief In Spokeo, Inc. V. Robins, Neil M. Richards, Julie E. Cohen, Chris Jay Hoofnagle, William Mcgeveran, Paul Ohm, Joel R. Reidenberg, David Thaw, Lauren E. Willis

Scholarship@WashULaw

This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and …

Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp

Articles

Municipal open data raises hopes and concerns. The activities of cities produce a wide array of data, data that is vastly enriched by ubiquitous computing. Municipal data is opened as it is pushed to, pulled by, and spilled to the public through online portals, requests for public records, and releases by cities and their vendors, contractors, and partners. By opening data, cities hope to raise public trust and prompt innovation. Municipal data, however, is often about the people who live, work, and travel in the city. By opening data, cities raise concern for privacy and social justice.

This article presents …

Can Americans Resist Surveillance?, Ryan Calo

Articles

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Cyber Black Box/Event Data Recorder: Legal And Ethical Perspectives And Challenges With Digital Forensics, Michael Losavio, Pavel Pastukov, Svetlana Polyakova

Journal of Digital Forensics, Security and Law

With ubiquitous computing and the growth of the Internet of Things, there is vast expansion in the deployment and use of event data recording systems in a variety of environments. From the ships’ logs of antiquity through the evolution of personal devices for recording personal and environmental activities, these devices offer rich forensic and evidentiary opportunities that smash against rights of privacy and personality. The technical configurations of these devices provide for greater scope of sensing, interconnection options for local, near, and cloud storage of data, and the possibility of powerful analytics. This creates the unique situation of near-total data …

Four Privacy Myths, Neil M. Richards

Scholarship@WashULaw

Any discussion about privacy today inevitably confronts a series of common arguments about the futility of privacy in our digital age. "Privacy is Dead," we hear, and "people (especially young ones) don’t care about privacy." What’s more, privacy just protects bad behavior because those of us with "nothing to hide have nothing to fear." And anyway, the argument goes, new privacy laws would be bad policy since "privacy is bad for business."

There are other common claims, but these four are perhaps the most common. They are also myths, and in this essay I show why. First, privacy can’t be …

Intellectual Freedom And Privacy, Neil M. Richards, Joanna Cornwell

Scholarship@WashULaw

This essay offers an account of the complex ways intellectual freedom and privacy are interrelated. We pay particular attention to both the constitutional dimensions of these important values, as well as the important roles that social and professional norms play in their protection in practice. Our examination of these issues is divided into three parts. Part I lays out the law and legal theory governing privacy as it relates to intellectual freedom. Part II examines a special context in which law and professional norms operate together to protect intellectual freedom through privacy–the library. Finally, Part III discusses how government actions …

Evidentiary Power And Propriety Of Digital Identifiers And The Impact On Privacy Rights In The United States, Michael Losavio, Deborah Keeling

Journal of Digital Forensics, Security and Law

Media and network systems capture and store data about electronic activity in new, sometimes unprecedented ways; computational systems make for new means of analysis and knowledge development. These new forms offer new, powerful tactical tools for investigations of electronic malfeasance under traditional legal regulation of state power, particular that of Fourth Amendment limitations on police searches and seizures under the U.S. Constitution. But autonomy, identity and authenticity concerns with electronic data raise issues of public policy, privacy and proper police oversight of civil society. We examine those issues and their implications for digital and computational forensics

Effects Of The Factory Reset On Mobile Devices, Riqui Schwamm, Neil C. Rowe

Journal of Digital Forensics, Security and Law

Mobile devices usually provide a “factory-reset” tool to erase user-specific data from the main secondary storage. 9 Apple iPhones, 10 Android devices, and 2 BlackBerry devices were tested in the first systematic evaluation of the effectiveness of factory resets. Tests used the Cellebrite UME-36 Pro with the UFED Physical Analyzer, the Bulk Extractor open-source tool, and our own programs for extracting metadata, classifying file paths, and comparing them between images. Two phones were subjected to more detailed analysis. Results showed that many kinds of data were removed by the resets, but much user-specific configuration data was left. Android devices did …

Big Data Ethics, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

We are on the cusp of a “Big Data” Revolution, in which increasingly large datasets are mined for important predictions and often surprising insights. The predictions and decisions this revolution will enable will transform our society in ways comparable to the Industrial Revolution. We are now at a critical moment; big data uses today will be sticky and will settle both default norms and public notions of what is “no big deal” regarding big data predictions for years to come.

In this paper, we argue that big data, broadly defined, is producing increased powers of institutional awareness and power that …

Watching The Watchers, Neil M. Richards

Scholarship@WashULaw

In this essay from Wired Magazine (UK)'s special edition, The Wired World in 2014, Prof. Richards argues that sousveillance–watching the watchers–is an important development that will be on the rise in 2014.

The Dangers Of Surveillance, Neil M. Richards

Scholarship@WashULaw

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have …

Keep Your Update To Yourself, Neil M. Richards

Scholarship@WashULaw

An essay from Wired Magazine (UK)'s special edition, The Wired World in 2013. The essay makes the argument that frictionless sharing of reading habits should decline in 2013.

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

Three Paradoxes Of Big Data, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decision making can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has …

Electronic Privacy And Employee Speech, Pauline Kim

Scholarship@WashULaw

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased …

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …

Regulating The Use Of Genetic Information: Perspective From The U.S. Experience, Pauline Kim

Scholarship@WashULaw

This essay comments on an empirical study documenting the policies, practices, and attitudes of Australian employers regarding the use of genetic information from the U.S. perspective. The U.S. Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), which, among other things, prohibits employment discrimination on the basis of genetic information and restricts employers’ access to their employees’ genetic information. Just as the Australian study found no evidence of systematic use of genetic testing or screening by employers, GINA was passed in the absence of any evidence of widespread employment discrimination on the basis of genetic characteristics. Although it …

Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy …

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …