Privacy Law Commons^™

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Faculty Publications

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

The Use Of Big Data Analytics By The Irs: Efficient Solutions Or The End Of Privacy As We Know It?, Kimberly A. Houser, Debra Sanders

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the privacy issues resulting from the IRS's big data analytics program as well as the potential violations of federal law. Although historically, the IRS chose tax returns to audit based on internal mathematical mistakes or mismatches with third party reports (such as W-2s), the IRS is now engaging in data mining of public and commercial data pools (including social media) and creating highly detailed profiles of taxpayers upon which to run data analytics. This Article argues that current IRS practices, mostly unknown to the general public are violating fair information practices. This lack of transparency and accountability …

Flagging The Middle Ground Of The Right To Be Forgotten: Combatting Old News With Search Engine Flags, Hannah L. Cook

Vanderbilt Journal of Entertainment & Technology Law

Incomplete and outdated news articles present an increasing problem for individuals who find themselves stigmatized on the basis of truthful but misleading reports. This Article proposes a moderate solution between the European right to be forgotten and the protectionless status quo in the United States. It proposes a flagging system, administered through Federal Trade Commission adjudications, where links to articles whose private harms outweigh their public benefits are flagged in the search results of an individual. This flag will help combat psychological biases that may cause decisionmakers to place an irrational weight on these articles while preserving the ability of …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Michigan Law Review

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

Compulsory Corporate Cyber-Liability Insurance: Outsourcing Data Privacy Regulation To Prevent And Mitigate Data Breaches, Minhquang N. Trang

Minnesota Journal of Law, Science & Technology

No abstract provided.

Only The Good Regulations Die Young: Recognizing The Consumer Benefits Of The Fcc's Now-Defunct Privacy Regulations, Paul R. Gaus

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Dark Side Of Social Media Romance: Civil Recourse For Catfish Victims, Armida Derzakarian

Loyola of Los Angeles Law Review

No abstract provided.

Decrypting The Fourth Amendment: Applying Fourth Amendment Principles To Evolving Privacy Expectations In Encryption Technologies, Candice Gliksberg

Loyola of Los Angeles Law Review

No abstract provided.

Privacy, Vulnerability, And Affordance, Ryan Calo

Articles

This essay begins to unpack the complex, sometimes contradictory relationship between privacy and vulnerability. I begin by exploring how the law conceives of vulnerability — essentially, as a binary status meriting special consideration where present. Recent literature recognizes vulnerability not as a status but as a state — a dynamic and manipulable condition that everyone experiences to different degrees and at different times. I then discuss various ways in which vulnerability and privacy intersect. I introduce an analytic distinction between vulnerability rendering, i.e., making a person more vulnerable, and the exploitation of vulnerability whether manufactured or native. I also describe …

Reining In Internet-Age Expansion Of Exemption 7(C): Towards A Tort Law Approach For Ferreting Out Legitimate Privacy Concerns And Unwarranted Intrusions Under Foia, Clay Calvert, Austin Vining, Sebastian Zarate

SMU Law Review

Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of …

The Dark Web: Some Thoughts For An Educated Debate, Vanessa Henri

Canadian Journal of Law and Technology

The ‘‘dark web” is a part of cyberspace that is only accessible through an anonymity software, such as The Onion Router. This encrypted network has prompted important legal challenges. As jurisprudence develops, many factors are at risk of inhibiting users’ right to privacy. Misunderstandings of the dark web’s functioning or myths regarding its veil of anonymity has justified invasive criminal investigations that has threatened users’ right to remain anonymous online. This article discusses these challenges while analyzing current legal developments in the United States and Canada.

Has The Era Of Privacy Come To An End?, Avner Levin

Canadian Journal of Law and Technology

This keynote address to the 2016 McGill Law Graduate Conference provides a brief history of privacy before discussing contemporary challenges in the form of increasing technological ability to create, store and process personal information, and powerful advocacy against privacy from both government and the private sector. In order for privacy to survive, a new set of personal information protection principles is required and new ways of enforcing these principles must be developed, which will leverage the power of technology to develop hybrid regulatory/ technological solutions, such as Google’s content removal tool.

Cyber Operations And The Humanization Of International Humanitarian Law: Problems And Prospects, Giacomo Biggio

Canadian Journal of Law and Technology

The aim of International Humanitarian Law (‘‘IHL”) is to regulate the conduct of hostilities while, at the same time, balancing the two overarching concepts of military necessity and humanity. While the principle of military necessity allows a party to a conflict to exercise any amount of armed violence which is necessary for the accomplishment of a military purpose, the principle of humanity aims at minimizing the amount of physical violence caused to combatants and the civilian population. From the late 19th century onwards the principle of humanity has progressively eroded the domain of military necessity, influencing the creation and interpretation …

A Critical Assessment On The Extraterritorial Application Of Human Rights Treaties To Transnational Cyber Surveillance, Wanshu Cong

Canadian Journal of Law and Technology

In this essay, I question the appropriateness of applying the substantive requirements of lawful domestic surveillance developed from international human rights treaties and relevant case law to transnational cyber surveillance. And I argue in the negative. Therefore, for the purpose of this essay, I would not delve into the highly debatable issue of what counts as ‘‘control” in cyber surveillance and which standard of control triggers a state’s jurisdiction. Instead, this essay assumes that a control test was established. In the following section, I shall examine the substantive requirements for states restricting fundamental freedoms drawn on from current human rights …

Third-Party Services As Potential Sources For Law Enforcement Procurement Of Genomic Data, Katherine Kwong

Canadian Journal of Law and Technology

This paper examines two cases studies: Ancestry.com’s experience with law enforcement use of its genetic databases, and 23andMe’s responses to requests for users’ genomic data. Analyzing the responses to law enforcement requests by the two of the largest providers of third-party genomic services provides insight into the struggles third-party genomic services are likely to face and possible future directions for companies facing this type of law enforcement request.

Machine Learning With Personal Data: Is Data Protection Law Smart Enough To Meet The Challenge?, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

The Gdpr As A Chance To Break Down Borders, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Nora Ni Loideain

Articles by Maurer Faculty

No abstract provided.

Workplace Freakonomics, Matthew T. Bodie

All Faculty Scholarship

Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Holding The Fbi Accountable For Hacking Apple's Software Under The Takings Clause, Mark S. Levy

American University Law Review

Smartphones have swiftly replaced most-if not all-conventional methods of sending, receiving, and storing personal information. Letters, address books, calendars, and trips to the bank have been rendered obsolete by tools such as text messaging, digital contacts, iCal, and mobile banking apps. Although these digital alternatives are convenient, they are not immune from attack. Therefore, to remain competitive, technology companies must maintain safe and secure platforms on which users may freely store and share their personal information.

Apple Inc., for example, strives to protect its users' intimate information, consequently earning a reputation for prioritizing security. Like a king protecting his castle, …