Privacy Law Commons^™

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

A New Common Law Of Web Scraping, Benjamin L.W. Sobel

Lewis & Clark Law Review

The Clearview AI facial recognition scandal is a monumental breach of privacy that arrived at a particularly inopportune time. A shadowy company reportedly scraped billions of publicly-available images from social media platforms and compiled them into a facial recognition database that it made available to law enforcement and private industry. To make matters worse, the scandal came to light just months after the Ninth Circuit’s decision in hiQ v. LinkedIn, which held that scraping the public web probably does not violate the Computer Fraud and Abuse Act (CFAA). Before hiQ, the CFAA would have seemed like the surest route to …

Charles Reich And The Legal History Of Privacy, Sarah A. Seo

Touro Law Review

No abstract provided.

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

Digital Gatekeepers, Thomas E. Kadri

Scholarly Works

If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned about reputations and …

A Virtuous Circle: How Health Solidarity Could Prompt Recalibration Of Privacy And Improve Data And Research, Nicolas P. Terry, Christine Coughlin

Oklahoma Law Review

No abstract provided.

The Right To Benefit From Big Data As A Public Resource, Mary D. Fan

Articles

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

Articles

This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

Cyber Trespass And Property Concepts, Adam J. Macleod

Scholarly Articles

Access to information is the purpose of the Internet. Ask anyone born after the dawn of the information age; they will tell you that cyberspace is the place to go if one wants to know stuff. On the other hand, many of the people who put stuff on the Internet or on systems connected to the Internet will tell you that, without legal rights to control or block access, people will not have incentives to put on the Internet stuff that is worth knowing. In this tension between access and control, property is generally assumed to be on the side …

At A Covid Crossroads : Public Health, Patient Privacy, And Health Information Confidentiality, Stacey A. Tovino

Faculty Articles

This essay summarizes and assesses the various bulletins, guidance documents, and notices of enforcement discretion released by the federal Department of Health and Human Services regarding the application of the HIPAA Privacy Rule to the COVID-19 pandemic. Among other topics and actions, these authorities address the application of the HIPAA Privacy Rule to the use and disclosure of protected health information for public health activities, waive the application of certain HIPAA Privacy Rule requirements during the COVID-19 pandemic, and announce enforcement discretion regarding certain covered entities’ non-compliance with particular provisions within the HIPAA Privacy Rule. These authorities overwhelmingly, and appropriately, …

Second Thoughts On Fda's Covid-Era Mental Health App Policy, Michael Mattioli

Articles by Maurer Faculty

As the coronavirus pandemic swept across the globe in April 2020, the US Food and Drug Administration (FDA) made an unusual decision. The agency announced that it would relax its enforcement of compliance rules for “digital therapeutics”—smartphone apps designed to address mental health disorders. The measure was a response to widely reported upticks in symptoms of anxiety, depression, and substance abuse brought on by the pandemic. As an added benefit, the agency explained, digital therapeutics could promote social distancing by removing patients’ need to visit health care providers.

This essay explores the possible lasting effects of the FDA’s temporary suspension …

The Harmful Addiction To The War On Drugs, Walter E. Block, Alan G. Futerman

Touro Law Review

Most modern societies prohibit the use of addictive drugs such as cocaine and heroin. We contend this is a mistake. They should all be legalized, forthwith, since their usage constitutes a victimless crime. But more, we also maintain that these jurisdictions are actually addicted to these unjust and harmful laws since, no matter what the logic or the evidence about the perniciousness of this legislation, it still remains on the books

"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.

This Article delineates the various contexts in which slack arises and …

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

Charles Reich And The Legal History Of Privacy, Sarah Seo

Faculty Scholarship

Historians’ interest in Reich offers a case study of the relationship between historical and legal studies. What can legal scholars learn from historians, and what can historians learn from legal scholarship? This Essay will explore these two questions by focusing on Igo’s The Known Citizen since she encountered Reich not with the dual citizenship of a legal historian but as an intellectual historian. I will first highlight what legal scholars can learn from historians by summarizing the main arguments in The Known Citizen. Then, I will provide an alternative legal account to Igo’s history of privacy, which may clear …

A Rising Tide Lifts All Consumers: Penumbras Of Foreign Data Protection Laws In The United States, Michael Goodyear

Articles & Chapters

With the growth of collecting, processing, and transferring personal information to third parties, consumers’ data is increasingly exposed to a myriad of risks. Perhaps chief among these are the data protection practices of data collectors themselves. Yet despite the risk to consumers, U.S. data protection law has remained fragmented, focused on individual industries at the federal law and only made comprehensive, occasionally, at the state level. This lack of a comprehensive data protection law in the United States is a significant detriment to the security of U.S. consumers. International law also offers no such path that could comprehensively protect U.S. …

The Covid-19 Pandemic And The Technology Trust Gap, Johanna Gunawan, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Industry and government tried to use information technologies to respond to the COVID-19 pandemic, but using the internet as a tool for disease surveillance, public health messaging, and testing logistics turned out to be a disappointment. Why weren’t these efforts more effective? This Essay argues that industry and government efforts to leverage technology were doomed to fail because tech platforms have failed over the past few decades to make their tools trustworthy, and lawmakers have done little to hold these companies accountable. People cannot trust the interfaces they interact with, the devices they use, and the systems that power tech …

What Is Privacy? That’S The Wrong Question, Woodrow Hartzog

Faculty Scholarship

Privacy has never had a precise meaning. But in the early 1900s, the concept took on new life as a term of art in legal frameworks. The result has been a bit of a mess, as no singular definition has been adequate for all purposes. Daniel Solove, perhaps the most influential privacy scholar of our day, wrote at the turn of the millennium that privacy was “a concept in disarray.”

In this short essay reflecting upon Solove’s impact on the modern study of information privacy, I argue that the chaos and futility of competing conceptualizations of privacy is why Solove’s …

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.

Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …

The Case Of The Nosy Neighbors, Johanna Gunawan, Woodrow Hartzog

Faculty Scholarship

Inspired by companies like Clearview AI, Nextdoor, and Amazon, this case study asks students to assume the role of a high-ranking ethics-focused employee at a (fictional) neighborhood-focused social media company. It involves challenging ethical questions around how social media services and surveillance tools are built and used, and the complicated relationship between companies, their users, and law enforcement authorities. Students should pay particular attention to the values implicated by certain design decisions, and the competing incentives for corporations that might complicate the picture for ethical decision making.