Privacy Law Commons^™

The Weak Protection Of Strong Encryption: Passwords, Privacy, And Fifth Amendment Privilege, Nathan K. Mcgregor

Vanderbilt Journal of Entertainment & Technology Law

While the constitutional protection afforded private papers has waxed and waned for more than a century, the Supreme Court has greatly restricted the Fifth Amendment privilege against self-incrimination--at least as applied to voluntarily prepared documents. Specifically, where the government knows of the existence and location of subpoenaed documents, the Fifth Amendment guarantee will not justify a failure to produce them, unless the act of production would itself incriminate the defendant. However, the Self-Incrimination Clause still precludes the compelled creation of documents that are both incriminating and testimonial.

The "private papers" doctrine has remained relatively stable for approximately thirty years now, …

Keynote Address, Dean Spade

Faculty Articles

This article challenges the traditional methods taken by progressive lawyers and activists. It argues that superficial changes to a marginalizing system simply create “window dressing” that serves to reinforce the status quo. This article is a provocative call to radicalize legal practice, to be critical of all movements, and always question who is being excluded. It highlights that what may appear like making things better may actually be a contribution to the legitimization of the system that one intends to challenge.

Nieves V. Home Box Office, Inc., Andrew Nieh

NYLS Law Review

No abstract provided.

Discipline In Schools After Safford Unified School District #1 V. Redding, Dennis D. Parker

NYLS Law Review

No abstract provided.

Civilians In Cyberwarfare: Conscripts, Susan W. Brenner, Leo L. Clarke

Vanderbilt Journal of Transnational Law

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation's infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their …

Groundwork For Assessing The Legal Risks Of Cyberjustice, François Senécal, Karim Benyekhlef

Canadian Journal of Law and Technology

It is clear that the use of information technology is quickly becoming a necessity for the justice system. In civil cases, delays and costs are causing individuals to abandon the courts, and cases that make it to trial are of ever-increasing complexity. Moreover, public security is weakened by the inefficient and cumbersome conditions by which criminal justice information circulates among the various stakeholders, such as the police, prosecutors, the courts, penitentiaries and parole boards, to name only a few. It becomes apparent that information technology has much to offer individuals involved in court cases and the justice system as a …

Strong Medicine: Patents, Market, And Policy Challenges For Managing Neglected Diseases And Affordable Prescription Drugs, Taiwo A. Oriola

Canadian Journal of Law and Technology

The article is divided into six parts. Part one deals with the introduction, part two discusses the evolution of modern medicine and the socio-economic dynamics that shape the current prescription drug economics, part three discusses the pharmaceutical costs conundrum, part four analyses neglected diseases and the scale of the problem, part five discusses the role of patents on the pharmaceuticals costs trajectory and reviews literature on possible alternatives to promoting incentives for pharmaceuticals R&D, and part six sums up the discourse and reiterates the solutions to the problems identified.

The Patentability Of Electromagnetic And Acoustic Signals In Canada, Natalie Raffoul

Canadian Journal of Law and Technology

The issue of the patentability of electromagnetic and acoustic signals has not been litigated in Canada. If, however, the issue does come forward for litigation, Canadian courts may decide differently than their American colleagues did. The Supreme Court of Canada’s ‘Harvard Mouse’ decision shows that the Canadian law on patentable subject matter differs from American law. Under the Canadian definition of manufacture, electromagnetic and acoustic signals could constitute patentable subject matter.

Information Privacy In Public Space: Location Data, Data Protection And The Reasonable Expectation Of Privacy, Teresa Scassa

Canadian Journal of Law and Technology

This article considers whether the permissive disclosure provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and its substantially similar counterparts mean that law enforcement agents have ready access to information about our movements and activities, or whether s. 8 of the Charter plays a role in limiting the circumstances in which disclosure without notice or consent may take place.

Web 2.0 Regulation: A Risk Management Process, Pierre Trudel

Canadian Journal of Law and Technology

In order to describe the law relating to Web 2.0, we have to look at the normativity that really operates there. Effective norms engender strong enough risks for stakeholders that they find it in their interest to comply. State legislation is not the only thing that governs Internet activities; the normativity that governs the resources associated with Web 2.0 flows from what the technology permits and prohibits, and also largely from stakeholder practices. Configurations and practices create risk or shift risk onto others. However, state regulators may consider that the risks arising out of Internet activities are worrisome enough that …

Fair Dealing Or Fare Stealing?: Implications Of Canadian Copyright Law Reform On The Online Classroom, Louis Grilli, Daniel Huff, Andrea Shakespeare, Michael Bliemel

Canadian Journal of Law and Technology

This article first examines Canadian copyright law as it pertains to distance education with a detailed review of literature, legislation and jurisprudence, including a comparison with influential law from the United States. Included in this analysis are the opinions of specialists and experts on distance education and copyright in the university environment, who were interviewed during this research. Based on the research findings, we have identified three distinct legislative outcomes. For each, we provide recommendations on how a university and other stakeholders might best protect their interests when confronted with any of these three possibilities.

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 …

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 …

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 …

Privacy As Product Safety, James Grimmelmann

Cornell Law Faculty Publications

Online social media confound many of our familiar expectations about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Google Books: Page By Page, Click By Click, Users Are Reading Away Privacy Rights, Kathleen E. Kubis

Vanderbilt Journal of Entertainment & Technology Law

Google Books will likely become the world's most extensive book and magazine search and browsing resource, library, and bookstore--combined. However, as users necessarily reveal personal identifying information through their book searches and reading habits, this service poses a significant threat to personal privacy.

Because the Google Books Amended Settlement Agreement neglects to meaningfully address user privacy, the only available privacy protections are the limited rights bestowed by the Google Books Privacy Policy and the Google Privacy Policy. Unfortunately, these Privacy Policies protect the interests of Google at the expense of users.

The enactment of federal privacy statutes, which include provisions …

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Michigan Law Review

Part I of our Review discusses the central premises of Understanding Privacy, with particular attention paid to Solove's pragmatic methodology and his taxonomy of privacy. We introduce his pluralistic approach to conceptualizing privacy, which urges decision makers to assess privacy problems in context, and we explore his view that meaningful choices about privacy depend on an appreciation of how privacy benefits society as a whole. We also describe how Solove's taxonomy aims to account for the variety of activities that threaten privacy. In Part II, we analyze the strengths of Solove's pragmatism by demonstrating its functionality and flexibility in …

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …