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Privacy Law Commons

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Want To Know A Secret . . .? Electronic Surveillance, National Security, And The Role Of The Foreign Intelligence Surveillance Act, Jesslin Wooliver 2020 Boston College Law School

Want To Know A Secret . . .? Electronic Surveillance, National Security, And The Role Of The Foreign Intelligence Surveillance Act, Jesslin Wooliver

Boston College Law Review

On February 29, 2019, the United States Court of Appeals for the Ninth Circuit held in Fazaga v. Federal Bureau of Investigation (Fazaga II) that the Foreign Intelligence Surveillance Act (FISA)—passed in 1978 to limit the government’s ability to conduct certain surveillance activities without court authorization—displaces the state secrets privilege in all cases involving electronic surveillance for foreign intelligence purposes. Until recently, courts applied the procedures set forth in FISA only to claims brought under FISA. Meanwhile, the state secrets privilege—a common-law doctrine insulating the government from disclosing sensitive information related to national security in court ...


Cybersecurity, Privacy, And Artificial Intelligence: An Examination Of Legal Issues Surrounding The European Union General Data Protection Regulation And Autonomous Network Defense, Brandon W. Jackson 2020 University of Minnesota Law School

Cybersecurity, Privacy, And Artificial Intelligence: An Examination Of Legal Issues Surrounding The European Union General Data Protection Regulation And Autonomous Network Defense, Brandon W. Jackson

Minnesota Journal of Law, Science & Technology

No abstract provided.


Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen 2020 Cleveland-Marshall College of Law

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the ...


Emerging Technology & Regulation Panel Transcript, Bill Goodwin, Ryan Hagemann, Brooks Rainwater, Caleb Watney 2020 Pepperdine University

Emerging Technology & Regulation Panel Transcript, Bill Goodwin, Ryan Hagemann, Brooks Rainwater, Caleb Watney

Pepperdine Law Review

No abstract provided.


Modern Privacy Advocacy: An Approach At War With Privacy Itself?, Justin "Gus" Hurwitz, Jamil N. Jaffer 2020 Pepperdine University

Modern Privacy Advocacy: An Approach At War With Privacy Itself?, Justin "Gus" Hurwitz, Jamil N. Jaffer

Pepperdine Law Review

This Article argues that the modern concept of privacy itself, particularly as framed by some of its most ardent advocates today, is fundamentally incoherent. The Article highlights that many common arguments made in support of privacy, while initially seeming to protect this critical value, nonetheless undermine it in the long run. Using both recent and older examples of applying classic privacy advocacy positions to key technological innovations, the authors demonstrate how these positions, while seemingly privacy-enhancing at the time, actually resulted in outcomes that were less beneficial for consumers and citizens, including from a purely privacy-focused perspective. As a result ...


The Gdpr And The Consequences Of Big Regulation, Matthew R. A. Heiman 2020 Pepperdine University

The Gdpr And The Consequences Of Big Regulation, Matthew R. A. Heiman

Pepperdine Law Review

This Article summarizes the key features of the European Union’s General Data Privacy Regulation (GDPR) that became effective on May 25, 2018. The stated purpose of the law is to give individuals greater control over personal information that is handled by companies and organizations. The Article argues that the GDPR is fundamentally flawed. Key terms within the GDPR are undefined; the burdens of the GDPR will fall heaviest on small businesses; the GDPR disrupts a valuable business model; the GDPR will stymie growth, innovation, and information sharing; and it may be the product of protectionist impulses rather than concerns ...


When Considering Federal Privacy Legislation, Neil Chilson 2020 Pepperdine University

When Considering Federal Privacy Legislation, Neil Chilson

Pepperdine Law Review

Legislators, advocates, and business interests are proposing federal privacy legislation with new urgency. The United States has a long-established federal framework for addressing commercial privacy concerns, including general consumer protection law and sector-specific legislation. But the calls to expand or replace this approach have grown louder since Europe’s General Data Protection Regulation went into effect and since California adopted detailed and prescriptive privacy legislation. Should we create a U.S. federal privacy law, and if so, how? When considering any kind of privacy regulation, three concepts are fundamental. First, no one can control all information about them. Second, all ...


U.S.-U.K. Executive Agreement: Case Study Of Incidental Collection Of Data Under The Cloud Act, Eddie B. Kim 2020 University of Washington School of Law

U.S.-U.K. Executive Agreement: Case Study Of Incidental Collection Of Data Under The Cloud Act, Eddie B. Kim

Washington Journal of Law, Technology & Arts

In March 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act, also known as the CLOUD Act, in order to expedite the process of cross-border data transfers for the purposes of criminal investigations. The U.S. government entered into its first Executive Agreement, the main tool to achieve the goals of the statute, with the United Kingdom in October 2019. While the CLOUD Act requires the U.S. Attorney General to consider whether the foreign government counterpart has a certain level of robust data privacy laws, the relevant laws of the United Kingdom have generally been questioned numerous ...


The Changing Wind Of Data Privacy Law: A Comparative Study Of The European Union’S General Data Protection Regulation And The 2018 California Consumer Privacy Act, Grace Park 2020 University of California, Irvine School of Law

The Changing Wind Of Data Privacy Law: A Comparative Study Of The European Union’S General Data Protection Regulation And The 2018 California Consumer Privacy Act, Grace Park

UC Irvine Law Review

On May 25, 2018, the European Union’s (EU) General Data Protection Regulation (GDPR) came into effect. The GDPR is expected to reshape web use and overhaul data privacy laws beyond Europe in how businesses and organizations can handle customer and user information. Only a month after, California passed the California Consumer Privacy Act of 2018 (CCPA). The CCPA is one of the most significant regulations overseeing data-collection practices of businesses in the United States. It is the first of its kind and is expected to provide the most comprehensive data privacy measures in the United States. As such, the ...


Anti-Masking Statutes And Anonymous Protest In The Age Of Surveillance, Nicholas Doherty 2020 Seattle University School of Law

Anti-Masking Statutes And Anonymous Protest In The Age Of Surveillance, Nicholas Doherty

Seattle Journal for Social Justice

No abstract provided.


Real You Meets Virtual You: It Is Time For Consumers To Regain Power Online, Neeka Hodaie 2020 Seattle University School of Law

Real You Meets Virtual You: It Is Time For Consumers To Regain Power Online, Neeka Hodaie

Seattle Journal for Social Justice

No abstract provided.


The Effect Of The European Union (Eu) General Data Protection Regulation (Gdpr) On The Gaming Industry, Zaniah Jordan 2020 University of Nevada, Las Vegas -- William S. Boyd School of Law

The Effect Of The European Union (Eu) General Data Protection Regulation (Gdpr) On The Gaming Industry, Zaniah Jordan

UNLV Gaming Law Journal

No abstract provided.


A New Compact For Sexual Privacy, Danielle K. Citron 2020 Boston University School of Law

A New Compact For Sexual Privacy, Danielle K. Citron

Faculty Scholarship

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden.

Privacy law is ...


Cross-Border Data Flows, The Gdpr, And Data Governance, W. Gregory Voss 2020 Toulouse Business School

Cross-Border Data Flows, The Gdpr, And Data Governance, W. Gregory Voss

Washington International Law Journal

Today, cross-border data flows are an important component of international trade and an element of digital service models. However, they are impeded by restrictions on cross-border personal data transfers and data localization legislation. This Article focuses primarily on these complexities and on the impact of the new European Union (“EU”) legislation on personal data protection—the GDPR. First, this Article introduces its discussion of these flows by placing them in their economic and geopolitical setting, including a discussion of the results of a lack of international harmonization of law in the area. In this framework, rule overlap and rival standards ...


Privacy Dependencies, Solon Barocas, Karen Levy 2020 Cornell University

Privacy Dependencies, Solon Barocas, Karen Levy

Washington Law Review

This Article offers a comprehensive survey of privacy dependencies—the many ways that our privacy depends on the decisions and disclosures of other people. What we do and what we say can reveal as much about others as it does about ourselves, even when we don’t realize it or when we think we’re sharing information about ourselves alone. We identify three bases upon which our privacy can depend: our social ties, our similarities to others, and our differences from others. In a tie-based dependency, an observer learns about one person by virtue of her social relationships with others ...


Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards 2020 Northeastern University

Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards

Boston College Law Review

America’s privacy bill has come due. Since the dawn of the internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for fair information processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seem poised to blanket the country with FIPs-based laws if Congress fails to act. The United States is thus ...


Ethical Implications Of Forensic Genealogy In Criminal Cases, Solana Lund 2020 Pepperdine University

Ethical Implications Of Forensic Genealogy In Criminal Cases, Solana Lund

The Journal of Business, Entrepreneurship & the Law

The use of forensic genealogy to solve criminal cases is likely to increase in the coming years, especially given its success in solving cold cases. While its potential for good is impressive, there are also legitimate ethical concerns that need to be addressed. As society sees an increase in the use of forensic genealogy and DTC databases in criminal investigations as well as an increase in the media attention it garners, there will be more discussion regarding ethical implications. Legal scholars say that it is only a matter of time before courts weigh in on the privacy of DNA and ...


Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl 2020 The Catholic University of America, Columbus School of Law

Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl

Catholic University Law Review

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the United States must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future.

This Article identifies four technological trends that could significantly impact the way the United States conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase ...


Test, Trace, And Isolate: Covid-19 And The Canadian Constitution, François Tanguay-Renaud, Lisa M. Austin, Vincent Chiao, Beth Coleman, David Lie, Martha Shaffer, Andrea Slane 2020 Osgoode Hall Law School of York University

Test, Trace, And Isolate: Covid-19 And The Canadian Constitution, François Tanguay-Renaud, Lisa M. Austin, Vincent Chiao, Beth Coleman, David Lie, Martha Shaffer, Andrea Slane

Articles & Book Chapters

Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen Covid-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s “test, trace, and isolate” strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to Covid-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider ...


Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady 2020 Institute of Criminology and Criminal Justice, Carleton University

Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady

Osgoode Hall Law Journal

In R v Sharpe, the Supreme Court of Canada read in a “private use exception” to the offence of possessing child pornography. The Court reasoned that youths’ self-created expressive material and private recordings of lawful sexual activity—created by, or depicting the accused and held by the accused exclusively for private use—would pose little or no risk to children and may in fact be of significance to adolescent self-fulfillment, self-actualization, sexual exploration, and identity. Fundamental changes in the technological, social, sexual, and legal landscape since Sharpe have resulted in a lack of clarity regarding the exception’s scope. Federal ...


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