Privacy Law Commons^™

Amplifying Abuse: The Fusion Of Cyberharassment And Discrimination, Ari Ezra Waldman

Articles & Chapters

Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. Danielle Keats Citron not only teases out these effects in her masterful work, Hate Crimes in Cyberspace; she also makes the profound conclusion that these personal effects are part of a larger social cancer that breeds sexism, subjugation, …

The Right To Be Forgotten: Who Decides What The World Forgets, Patricia S. Abril, Jacqueline D. Lipton

Articles

In May 2014, the Court of Justice for the European Union ("CJEU") surprised the global cyberlaw community by holding that search engines like Google are "controllers" of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual's rights under the Directive. This obligation has come to be referred to as an aspect of a digital right to be forgotten." The search results in question related to a mortgage sale of property in a bankruptcy …

"Records Management Law" - A Necessary Major Field Of The Practice Of Law, Ken Chasse

Canadian Journal of Law and Technology

‘‘Records management law” will be a necessary area of specialization because: (1) electronic records are now produced by most commercial, communication, transmission of data, and social, formal, and semi-formal interactions; (2) therefore they are the foundation of many kinds of legislation; (3) records are the most frequently used kind of evidence in legal proceedings; and, (4) electronic records are as important to daily living as are motor vehicles, and will become more important. But the legal infrastructure of statutes, guidelines, and case law that controls the use of electronic records as evidence is very inadequate because it ignores these facts: …

Technological Neutrality Explained & Applied To Cbc V. Sodrac, Cameron J. Hutchison

Canadian Journal of Law and Technology

This article explores technological neutrality in the factual context of CBC v. SODRAC, heard before the Supreme Court of Canada in March of 2015 with decision pending at the time of publication. After outlining the history of the case in the first part, this article concludes with an application of the principle of technological neutrality, as non-interference, to the case. The only result coherent with the Supreme Court’s prior case law is to not treat non-usable or dormant incidental copies as reproductions under the Act. The status of permanent copies that serve a useful and identifiable purpose, e.g. archived copies, …

Privacy As Trust: Sharing Personal Information In A Networked World, Ari Ezra Waldman

Articles & Chapters

This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.”

The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy …

Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub

Faculty Scholarship

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …

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 …

The Internet Grows Up?, Neil M. Richards

Scholarship@WashULaw

Danielle Citron’s Hate Crimes in Cyberspace is one of the most important publications to date in the emerging fields of privacy and cyberlaw. In her thoughtful and insightful book, Citron explains the uneven playing field and frequently shocking acts of abuse that women face online, and demonstrates practical steps that we can take to remedy the problem of online hate through law, education, and the development of better, more inclusive norms. Other contributors to this Symposium have examined these contributions in great detail, pointing out important nuances of Citron’s argument, urging her in at least one case to be even …

Digital Laws Evolve, Neil M. Richards

Scholarship@WashULaw

The essay from Wired Magazine (UK)'s special volume, "The Wired World in 2015," argues that although digital laws have lagged behind technological advances, they are starting to catch up, and this trend will continue in 2015. When it comes to privacy and technology, the law is catching up all over the world.

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

Scholarship@WashULaw

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont …

Data Privacy As A Civil Right: The Eu Gets It?, Raymond Shih Ray Ku

Kentucky Law Journal

No abstract provided.

Surveillance At The Source, David Thaw

Kentucky Law Journal

Contemporary discussions concerning surveillance focus predominantly on government activity. These discussions are important for a variety of reasons, but they generally ignore a critical aspect of the surveillance--harm calculus--the source from which government entities derive the information they use. The source of surveillance data is the information "gathering" activity itself which is where harms like "chilling" of speech and behavior begin.

Unlike the days where satellite imaging, communications intercepts, and other forms of information gathering were limited to advanced law enforcement, military, and intelligence activities, private corporations now play a dominant role in the collection of information about individuals' activities. …

Privacy And Health Information: The United States And The European Union, Leslie Francis

Kentucky Law Journal

No abstract provided.

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

The Dawn Of Social Intelligence (Socint), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.

The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Publications

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and “possessed” simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the “third-party doctrine,” which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

Regulating Real-World Surveillance, Margot E. Kaminski

Publications

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private …

Secondary Data: A Primary Concern, Kelsey L. Zottnick

Vanderbilt Journal of Entertainment & Technology Law

This Note addresses privacy concerns implicated by rising secondary data mining. Secondary data mining is the use of personal information for a purpose other than the original. This complex technology drives billions of dollars in commercial industry yet remains largely unregulated. This Note examines the current state of the data mining industry and the behavioral fallacies that belie societal concerns about online privacy. Further, relevant federal, state, and constitutional laws appear outstripped by these technological advances. An analysis of potential privacy solutions examines the advantages and disadvantages of implementing each one through the privacy community, the federal government, and the …