Privacy Law Commons^™

Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt

Faculty Scholarship

The emergence of Big Data challenges the conventional boundaries between governing, exchange, and security. It ambiguates the lines between commerce and surveillance, between governing and exchanging, between democracy and the police state. The new digital knowledge reproduces consuming subjects who wittingly or unwittingly allow themselves to be watched, tracked, linked and predicted in a blurred amalgam of commercial and governmental projects. Linking back and forth from consumer data to government information to social media, these new webs of information become available to anyone who can purchase the information. How is it that governmental, commercial and security interests have converged, coincided, …

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

Rethinking Privacy, William H. Simon

Faculty Scholarship

Anxiety about surveillance and data mining has led many to embrace implausibly expansive and rigid conceptions of privacy. The premises of some current privacy arguments do not fit well with the broader political commitments of those who make them. In particular, liberals seem to have lost touch with the reservations about privacy expressed in the social criticism of some decades ago. They seem unable to imagine that preoccupation with privacy might amount to a “pursuit of loneliness” or how “eyes on the street” might have reassuring connotations. Without denying the importance of the effort to define and secure privacy values, …

The Right To Digital Privacy: Advancing The Jeffersonian Vision Of Adaptive Change, Kerry Moller

CMC Senior Theses

The relationship between privacy, technology, and law is complex. Thomas Jefferson’s prescient nineteenth century observation that laws and institutions must keep pace with the times offers a vision for change. Statutory law and court precedents help to define our right to privacy, however, the development of new technologies has complicated the application of old precedents and statutes. Third party organizations, such as Google, facilitate new methods of communication, and the government can often collect the information that third parties receive with a subpoena or court order, rather than a Fourth Amendment-mandated warrant. Privacy promotes fundamental democratic freedoms, however, under current …

Review And Reflection: Copyright Hearings And Related Discourse In The Nation’S Capital, 13 J. Marshall Rev. Intell. Prop. L. 487 (2014), Maria A. Pallante

UIC Review of Intellectual Property Law

On February 28, 2014, the Register of Copyrights of the United States and Director of the U.S. Copyright Office Maria A. Pallante delivered a keynote speech on the copyright hearings and related discourse in the nation’s capital. The speech was given at The John Marshall Law School’s 58th Annual Intellectual Property Conference. This article is based on her speech at the Conference.

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Data Protection In The European Union: A Closer Look At The Current Patchwork Of Data Protection Laws And The Proposed Reform That Could Replace Them All, Christina Glon

Faculty Articles

Laws protecting a European's right to control the flow of their own personal data (also known as "data privacy") date back as early as 1950. In the 65 years since the Council of Europe declared that every person has the fundamental "right to respect for his private and family life, his home and his correspondence," a patchwork of conventions, directives, treaties and communications have been created to ensure the ongoing protection of this right. However, in recent years, this patchwork approach has been unable to keep up with the pace of technology and has created confusion and concern for the …

Comments: What's Yours Is Ours? Gamete Donation In The Marital Context: Why Courts And Legislatures Should Not Interfere With An Individual's Fundamental Right To Privacy, Emily K. Alt

University of Baltimore Law Review

No abstract provided.

Panel Iii: The Future Of The Press And Privacy, Amy Gajda, Clay Calvert, Tom Bivins, Amy Sanders, Stephen Ward

Faculty Scholarship

No abstract provided.

The (Data Privacy) Law Hasn't Even Checked In When Technology Takes Off, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Privacy And Security Post-Snowden: Surveillance Law And Policy In The United States And India, Zachary W. Smith

Intercultural Human Rights Law Review

The paper is organized in a dual format, through the lens of two behemoths within the information technology sector: the United States and India. While India is an emerging superpower just beginning to recognize the role of information privacy in its society, the United States has a long paper trail of attempts to establish a settled framework for privacy enforcement. This article is subdivided into five sections in accordance with the New Haven' approach to give the reader comprehensive insight into the vexing issues that surround the information privacy debate today. Part I provides an interdisciplinary perspective into the rise …

Politics And The Public’S Right To Know, Lloyd Hitoshi Mayer

Journal Articles

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. …

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.

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 …

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 …

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 …

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

Clapper V. Amnesty International And Data Privacy Litigation: Is A Change To The Law “Certainly Impending”?, John L. Jacobus, Benjamin B. Watson

Richmond Journal of Law & Technology

On December 19, 2013, the retailer Target announced that unauthorized third parties had gained access to its customer payment information. While Target originally estimated that the security breach affected 40 million of its customers, a subsequent investigation revealed that anywhere from 70 to 110 million people—almost one in three Americans—may have had their sensitive payment information stolen. In response, the retailer offered free credit monitoring services and assured affected customers that they would not be responsible for fraudulent charges made with their payment information.

Riley V. California: The New Katz Or Chimel?, Adam Lamparello, Charles Maclean

Richmond Journal of Law & Technology

To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.