Privacy Law Commons^™

Shopping For Privacy: How Technology In Brick-And-Mortar Retail Stores Poses Privacy Risks For Shoppers, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

As technology continues to rapidly advance, the American legal system has failed to protect individual shoppers from the technology implemented into retail stores, which poses significant privacy risks but does not violate the law. In particular, I examine the technologies implemented into many brick-and-mortar stores today, many of which the average everyday shopper has no idea exists. This Article criticizes these technologies, suggesting that many, if not all of them, are questionable in their legality taking advantage of their status in a legal gray zone. Because the American judicial system cannot adequately protect the individual shopper from these questionable privacy …

The End Of Miller’S Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Georgia Law Review

For over 40 years, the Supreme Court has permitted
government investigators to warrantlessly collect
information that citizens disclose to third-party service
providers. That third-party doctrine is under significant
strain in the modern, networked world. Yet scholarly
responses typically fall into unhelpfully extreme camps,
either championing an absolute version of the doctrine
or calling for its abolition. In Carpenter v. United
States, the Court suggested a middle road, holding that
some categories of data—such as digital location
information collected from cell phones—do not neatly
fall into the third-party doctrine’s dichotomy between
unprotected, disclosed information and protected,
undisclosed information. But the majority …

Data Scraping As A Cause Of Action: Limiting Use Of The Cfaa And Trespass In Online Copying Cases, Kathleen C. Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, online platforms have used claims such as the Computer Fraud and Abuse Act (“CFAA”) and trespass to curb data scraping, or copying of web content accomplished using robots or web crawlers. However, as the term “data scraping” implies, the content typically copied is data or information that is not protected by intellectual property law, and the means by which the copying occurs is not considered to be hacking. Trespass and the CFAA are both concerned with authorization, but in data scraping cases, these torts are used in such a way that implies that real property norms exist …

The Future Of Facial Recognition Is Not Fully Known: Developing Privacy And Security Regulatory Mechanisms For Facial Recognition In The Retail Sector, Elias Wright

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the …

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …

An Information Operations Theory Of Domestic Counterterrorism Efforts, Tung Yin

South Carolina Law Review

No abstract provided.

Unmanned But Accelerating: Navigating The Regulatory And Privacy Challenges Of Introducing Unmanned Aircraft Into The National Airspace System, Benjamin Kapnik

Journal of Air Law and Commerce

No abstract provided.

A Brave New World: Using The Outer Space Treaty To Design International Data Protection Standards For Low- Earth Orbit Satellite Operators, Amir Saboorian

Journal of Air Law and Commerce

No abstract provided.

Carpenter V. United States And The Emerging Expectations Of Privacy In Data Comprehensiveness Applied To Browsing History, Daniel De Zayas

American University Law Review

No abstract provided.

"You Have The Data"...The Writ Of Habeas Data And Other Data Protection Rights: Is The United States Falling Behind?, Sarah L. Lode

Indiana Law Journal

In Part I of this Note, I will discuss the writ of habeas data that has been developed primarily, but not exclusively, in Latin American countries. I will discuss the intricacies of the writ, how it evolved, and how it is applied today. Using Argentina as an example, I will discuss how the writ would be used by an Argentine citizen to protect her personal data. Part II summarizes the previously employed data protection scheme in the European Union, the Data Protection Directive (“the Directive”), and will also discuss the new EU data protection regulation, the General Data Protection Regulation …

Data Protection In An Increasingly Globalized World, Nicholas F. Palmieri Iii

Indiana Law Journal

With the rise of the internet in recent decades, it has become increasingly easy for various enterprises—including retailers, advertising agencies, and service providers—to acquire, use, and even share the personal details of their users. Such a trend is unlikely to decrease in the coming years; in fact, internet usage is only likely to increase as more and more people gain access to the internet. In the wakeof recent data breaches, including the now infamous breach of Equifax as well as the scandal involving Facebook and Cambridge Analytica, people are even more aware of the need for (and the risk of …

Secrets Of The Deep: Defining Privacy Underwater, Annie Brett

UF Law Faculty Publications

The drones are coming, But not just to your neighborhood skies – to the world’s oceans. From recreational robots designed to autonomously follow divers and record video of them to low-cost, remotely operated submersibles that put ocean exploration in the hands of the general public to sophisticated military submersibles able to autonomously gather intelligence throughout the oceans, the underwater drone market is exploding. But unlike on land, this explosion has not been accompanied by similar discussion of privacy concerns. Instead, the ocean’s rapid shift away from an inaccessible operational sanctuary is one that is happening largely silently. And it is …

Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor

Faculty Publications By Year

Smart city technology is being adopted in cities all around the world to simplify our lives, save us time, ease traffic, improve education, reduce energy usage and keep us safe. This article discusses smart city projects being utilized in crime prevention and investigations. Specifically, this article highlights examples of gunshot detection devices and surveillance that have led to improvements in public safety in Cape Town, Chicago and Atlanta, and discusses their impacts to privacy.

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

A Right To Go Dark (?), David C. Gray

SMU Law Review

In 2013, reports based on documents leaked by former National Security Agency contractor Edward Snowden revealed committed efforts by federal agencies to develop and deploy data surveillance technologies. These revelations documented the ability of government agencies to monitor internet usage, read the contents of communications, and access data stored in the cloud and on personal devices. These revelations marked a turning point in the public conversation as consumers became aware of the extent to which national security and law enforcement agencies can monitor a wide range of activities in physical and virtual spaces.

The market responded. Technology companies began to …

Antidiscriminatory Privacy, Ignacio Cofone

SMU Law Review

Law often blocks sensitive personal information to prevent discrimination. It does so, however, without a theory or framework to determine when doing so is warranted. As a result, these measures produce mixed results. This article offers a theoretical framework for determining, with a view of preventing discrimination, when personal information should flow and when it should not. It examines the relationship between precluded personal information, such as race, and the proxies for precluded information, such as names and zip codes. It proposes that the success of these measures depends on what types of proxies exist for the information blocked and …

Privacy Preserving Social Norm Nudges, Yifat Nahmias

Michigan Technology Law Review

Nudges comprise a key component of the regulatory toolbox. Both the public and private sectors use nudges extensively in various domains, ranging from environmental regulation to health, food and financial regulation. This article focuses on a particular type of nudge: social norm nudges. It discusses, for the first time, the privacy risks of such nudges. Social norm nudges induce behavioral change by capitalizing on people’s desire to fit in with others, on their predisposition to social conformity, and on their susceptibility to the way information is framed. In order to design effective social norm nudges, personal information about individuals and …

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions …

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

Insidious Encroachment? Strengthening The "Crown Jewels": The 2018 Reauthorization Of Fisa Section 702, John F. Schifalacqua

American University National Security Law Brief

No abstract provided.