Privacy Law Commons^™

Trinity Western University Decisions And Engineers’ Equity, Diversity, And Inclusion Obligations Under The Statutory Public Interest Mandate, Michelle Liu, Vanessa Matta

Canadian Journal of Law and Technology

Engineers create technologies but do not sufficiently care for their biased and inequitable outcomes despite the engineering profession’s statutory mandate to protect the public interest. The engineering and legal professions’ similar admission processes and statutory provisions mandating the protection of public interest may justify applying the Supreme Court of Canada’s interpretation of the legal profession’s public interest mandate in the Trinity Western University decisions to the engineering profession. The Supreme Court’s interpretation centres on equal access to the profession, diversity within its membership, and protection of 2SLGBTQ+ persons. The work begins by setting out the definitions and challenges of equity, …

The Data Heist: Protecting Consumers And Their Information Through Opt-In Consent, John A. Hudson

Arkansas Law Review

This Comment will: (1) compare and contrast the data privacy laws in the United States and the European Union; (2) demonstrate the significant risk American consumers are subject to under the United States’ current laws and regulations; and (3) address the protections provided by the European Union’s explicit opt-in consent requirement that would ensure safer conditions for American consumers.

Privacy Matters: Data Breach Litigation In Japan, Andrew M. Pardieck

Washington International Law Journal

In 1890, when Brandeis and Warren wrote The Right to Privacy, Japan did not have a word for privacy. Today, it is closely guarded in Japan: the European Data Protection Board has found privacy protections in Japan “equivalent” to those in the EU. This research explores the evolution of privacy law in Japan, focusing on data breach and the legal rights and obligations associated with it. The writing is broken up into two parts: This article discusses private enforcement of privacy norms, as it is the courts that first established and continue to define privacy rights in Japan. A separate …

Redefining The Injury-In-Fact: Treating Personally Identifying Information As Bailed Property, Austin Headrick

Georgia Law Review

There is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been …

Data Is What Data Does: Regulating Based On Harm And Risk Instead Of Sensitive Data, Daniel J. Solove

Northwestern University Law Review

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is …

Wearable Ai, Bystander Notice, And The Question Of Privacy Frictions, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

With the rapid advancement of Artificial Intelligence (“AI”) technology and the widespread availability of large language models (“LLMs”), wearable AI devices and designs for new hardware have surged like never before. While wearable AI was traditionally marketed for health and fitness purposes, many of the emerging products are multifunctional. These features can jeopardize the privacy of bystanders in addition to the consumers. Product designers are thus facing a dilemma: ensuring third-party privacy or guaranteeing convenience and a user-friendly design. This Article argues for mandating “privacy frictions” to function as both bystander notice and consent for wearable AI devices with audiovisual …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Masthead

Catholic University Journal of Law and Technology

No abstract provided.

Table Of Contents

Catholic University Journal of Law and Technology

No abstract provided.

Understanding The Line Between Art And Abuse: How Generative Ai Changes The Landscape Of Child Sexual Abuse Materials, Amy Trivison

Catholic University Journal of Law and Technology

No abstract provided.

Eavesdropping: The Forgotten Public Nuisance In The Age Of Alexa, Julia Keller

Vanderbilt Law Review

Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Privacy Policy Indeterminacy, Christopher G. Bradley

Connecticut Law Review

Despite being subjected to decades of sharp criticism, privacy policies published by companies remain a linchpin of privacy regulation. Representations in these policies provide the main measure against which consumer privacy can be judged. Policies are rarely read by consumers. Instead, these policies are interpreted by company decision makers tasked with interpreting whether a proposed course of action is consistent with stated policies as well as underlying privacy law. To be effective, policies must constrain use of consumer data even when they are given a company-friendly reading.

Experimental evidence on the interpretation of privacy policies provides no grounds for encouragement …

China Data Flows And Power In The Era Of Chinese Big Tech, W. Gregory Voss, Emmanuel Pernot-Leplay

Northwestern Journal of International Law & Business

Personal data have great economic interest today and their possession and control are the object of geopolitics, leading to their regulation by means that vary dependent on the strategic objectives of the jurisdiction considered. This study fills a gap in the literature in this area by analyzing holistically the regulation of personal data flows both into and from China, the world’s second largest economy. In doing so, it focuses on laws and regulations of three major power blocs: the United States, the European Union, and China, seen within the framework of geopolitics, and considering the rise of Chinese big tech. …

Don't Call It 'Privacy': Data Protection, From Ideas To Constitutional Law, Raphaël Beauregard-Lacroix

SJD Dissertations

Data protection law has been subject to various criticisms, among which is one of a fundamental kind: devoted to procedures, it lost sight of its privacy-bound origins. This dissertation aims to provide a novel historical and comparative account of the transatlantic development of data protection law, from the origins to this day, identifying how it may yet succeed in reaching the policy goals its original proponents imagined, and untangling key legal concepts along the way.

The regulatory concept of data protection was founded on three basic principles: purpose limitation, universality, and institutional supervision and enforcement. These three principles trace their …

Valuing Social Data, Amanda Parsons, Salome Viljoen

Publications

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

Juror Privacy Via Anonymity, Jayne S. Ressler

Fordham Law Review

Anonymous juries delivered verdicts in the hush-money criminal trial of Donald J. Trump, as well as both of E. Jean Carroll’s defamation cases against him. After the defamation cases concluded, the judge cautioned the jurors against ever publicly revealing their identities. This was sound advice, as recent doxing, threats of violence, and online posts filled with hatred and vitriol illustrate the dangers facing American jurors. The scholarly literature analyzing anonymous juries focuses primarily on the propriety of their use in criminal cases to protect jurors from physical harm. Missing from the conversation, however, is an examination of anonymity’s role in …

A Fourth Amendment Of People And Places: Three Foundational Claims About Geofencing, Jordan Wallace-Wolf

Marquette Law Review

In Carpenter v. United States, the Supreme Court held that sufficiently lengthy surveillance of a person’s location was a search that presumptively required a warrant. This holding, the Court wrote, was an application of Katz v. United States’s battle cry that the Fourth Amendment “protects people, not places.”

Unfortunately, that battle cry is increasingly part of the problem. It was suited to Carpenter because it concerned the surveillance of Timothy Carpenter’s movement over 127 days. But police are increasingly supplementing long-term tracking of particular suspects with comparatively short-term tracking of whoever happens to occupy a particular swath of space during …