Privacy Law Commons^™

Privacy Rights And Public Families, Khiara Bridges

Faculty Scholarship

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Wto-Compliant Protection Of Fundamental Rights: Lessons From The Eu Privacy Directive, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Nation states often create legislative schemes regulating services industries in order to protect fundamental rights such as human life, economic security, or human security. World Trade Organization members are constrained in their creation of such regulatory schemes by their obligations under the General Agreement on Trade in Services (‘GATS’). WTO members raised concerns about such constraints even before the creation of GATS. As a result, GATS contains clauses specifically designed to allow members enough regulatory latitude to protect important domestic social interests, such as fundamental rights, while simultaneously liberalising trade in services. WTO jurisprudence interpreting these clauses, however, has called …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, Kimberly Self

American Indian Law Review

No abstract provided.

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs & Court Filings

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

Moving Forward Together, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Editorial, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Current And Emerging Transportation Technology: Final Nails In The Coffin Of The Dying Right Of Privacy?, James D. Phillips, Katharine E. Kohm

Richmond Journal of Law & Technology

Transportation networks constitute “the circulatory system of our economy.” The distinct modes that constitute the American transportation system—air, rail, transit, highways, and waterways—impact the entire range of our daily activities. Just as the human body depends on its circulatory system for life and well being, the United States’ vitality would grind to a halting stop without a vibrant transportation system.

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

Unraveling Privacy: The Personal Prospectus And The Threat Of A Full-Disclosure Future, Scott R. Peppet

Publications

Information technologies are reducing the costs of credible signaling, just as they have reduced the costs of data mining and economic sorting. The burgeoning informational privacy field has ignored this evolution, leaving it unprepared to deal with the consequences of these new signaling mechanisms. In an economy with robust signaling, those with valuable credentials, clean medical records, and impressive credit scores will want to disclose those traits to receive preferential economic treatment. Others may then find that they must also disclose private information to avoid the negative inferences attached to staying silent. This unraveling effect creates new types of privacy …

Privacy Implications Of Smart Meters, Cheryl Dancey Balough

Chicago-Kent Law Review

Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Location-Based Services: Time For A Privacy Check-In, Chris Conley, Nicole Ozer, Hari O'Connell, Ellen Ginsburg, Tamar Gubins

Faculty Scholarship

Need to get directions when you are lost? Want to know if your friends are in the neighborhood? Location-based services – applications and websites that provide services based on your current location – can put this information and more in the palm of your hand.

But outdated privacy laws and varying corporate practices could mean that sensitive information about who you are, where you go, what you do, and who you know end up being shared, sold, or turned over to the government.

Can location-based services protect your privacy? Do they? And what can we do to improve the situation? …

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

Vanderbilt Law Review

The Right to Privacy' and his dissent in Olmstead v. United States. In The Right to Privacy, Brandeis and Samuel Warren argued that intrusion into and public disclosure of private affairs by the press was deeply hurtful, and that the common law should be read to recognize a tort remedy for such violations. Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself. Brandeis is also famous (though less so) for his Olmstead dissent-a document which introduced modern concepts of privacy into constitutional law, and ultimately led not …

Known And Unknown, Property And Contract: Comments On Hoofnagle And Moringiello, James Grimmelmann

Cornell Law Faculty Publications

In addition to gerund-noun-noun titles and a concern with the misaligned incentives of businesses that handle consumers' financial data, Chris Hoofnagle's Internalizing Identity Theft and Juliet Moringiello's Warranting Data Security share something else: hidden themes. Hoofnagle's paper is officially about an empirical study of identity theft, but behind the scenes it's also an exploration of where we draw the line between public information shared freely and secret information used to authenticate individuals. Moringiello's paper is officially a proposal for a new warranty of secure handling of payment information, but under the surface, it invites us to think about the relationship …

Location Surveillance By Gps: Balancing An Employer's Business Interest With Employee Privacy, Kendra Rosenberg

Washington Journal of Law, Technology & Arts

Employers are increasingly using GPS tracking devices as business tools to monitor employee movements. Recent judicial decisions have found an employer’s interest in using location surveillance on employer-owned property generally trumps an employee’s privacy interests. However, employers deciding to use GPS should be aware of the potential limitations on tracking an employee based on state constitutional, statutory, and common law rights to privacy. This Article focuses on the permissible scope of an employer’s use of GPS to track employees in the workplace.