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TABLE OF CONTENTS I. BACKGROUND 837 II. THE SIGNIFICANCE OF TSA'S FACIAL RECOGNITION 841 PROGRAM III. HISTORICAL DEFERENCE TO AGENCY INTERPRETATIONS 845 IV. HOW THE COURT MIGHT REVIEW THE TSA'S [...], The Transportation Security Administration (TSA) has begun using facial recognition technology (FRT) to screen passengers at airports. Although travelers can currently opt out, it is not clear that this will continue to be an option as the program expands. This raises significant concerns about the amount of personally identifiable information being collected by the agency, as well as the level of discretion the agency has to implement this increasingly invasive technology without input from Congress. This Note proposes that, in light of the United States Supreme Court's shift away from its deferential Chevron standard for reviewing agency action, litigators can and should argue that the TSA's program ought to be struck down. Furthermore, it concludes that, regardless of whether the TSA's program would be invalidated in court, Congress should step in and pass legislation guiding the agency's adoption of FRT. Although much has been written about the Court's evolving Chevron-deference jurisprudence, this Note contributes to the discussion by applying this analysis to the TSA's potentially problematic new FRT program.

TABLE OF CONTENTS I. INTRODUCTION 657 II. "THE LAW OF THE HORSE" 660 III. COMPUTING SYSTEMS OF THE 1990S AND TODAY 662 A. Internet of the 1990s-2000s 663 B. Spatial [...], In the wake of Judge Frank Easterbrook's critique of the development of specific laws for cyberspace, Lawrence Lessig's 1998 proposition of "code-as-law" framed the internet's regulatory landscape through the interplay of four modalities--law, norms, market, and architecture. Today, at the start of the era of spatial computing, also known as extended reality (XR), it is timely to reassess Lessig's insights for this burgeoning digital frontier. This Article seeks to (1) update Lessig's framework to suit 3D computing, (2) envision governance for these novel systems, and (3) reimagine technological governance amidst failing traditional institutions. Revisiting code-as-law, the dynamic interplay of Lessig's modalities in digital governance shows how norms have played a central role. The internet's formative years echo today's nascent XR landscape in terms of legal ambiguity and technical volatility, as the parallel between the 1990s internet and current XR statistics underscores. Leading corporations' large investments in XR suggests that immersive technology will dominate future computing. XR demands new governance models due to its layering of digital environments onto real spaces, its profound sensory and psychological impact on users, and the commercial drive for content within virtual worlds, contrasting with the origins of the internet, with the impetus coming from outside the private sector. The uniqueness of XR, and more explicitly the differences from traditional flat screen computing, presents new governance challenges. When traditional modalities fail, society often reverts to hard law for intervention. This Article ponders the inflection points that could lead to such demands within XR pertaining to privacy concerns and the reemergence of online harms in a new medium. It questions the adequacy of Lessig's model in addressing systemic inefficiencies and the renegotiation of modalities in light of power imbalances. In sum, the study of cyberspace--and by extension, spatial computing--should transcend technical specifics and consider how emerging technologies can become inclusive or exclusionary. Drawing parallels with the early internet, this Article advocates for deliberate creation of networked spaces that embrace new modes of governance, thereby shaping a more equitable digital future.

TABLE OF CONTENTS I. INTRODUCTION 708 II. DEFINING "PUBLICLY ACCESSIBLE ONLINE DATA" 714 A. On a Baseline of Public Accessibility 715 B. Public Accessibility as a Technological Construct: 718 Automating [...], The data scraping and data collection that Application Programming Interfaces (APIs) enable are ubiquitous means of automatically and instantaneously gathering large amounts of online data. Anyone can leverage the capabilities of internet infrastructure to engage in data collection, yet the subjects of the data collection are often unaware of the full extent to which this personal data harvesting occurs. The accessibility and discreetness of large-scale automated online data collection test the overall fitness of the European data protection framework, the General Data Protection Regulation (GDPR), to provide control to individuals over their personal data while promoting innovation and ensuring legal certainty for all parties concerned. This Article explores the extent to which the jurisprudence of the Court of Justice of the European Union (CJEU) and the guidance of data protection authorities have accommodated this technological transformation. Data controllers have been the apparent focal point of institutional responses. Absent further clarification, however, an approach focused on data controllers is likely both insufficient and unsustainable. This Article outlines areas for further clarification and additional focus--namely, the concept of "public accessibility" of online data, the notion of "reasonable expectations," the capacity of the "fairness" principle, and an increased emphasis on technological infrastructure and rights-respecting AI development.

TABLE OF CONTENTS I. INTRODUCTION: CIVIL INVASIONS OF PRIVACY 616 II. THE HISTORY OF PRIVACY IN DISCOVERY 620 A. Early Focus on Depositions and "Blackmail": The 1930s 623 B. Attorney [...], US citizens enjoy strong protection against criminal searches pursuant to the Fourth Amendment, but they must produce a diary entry from a bedroom drawer or a text message to a romantic partner if it is relevant to a civil case and not privileged. The reason for this paradox, long a mystery to outsiders, is a complex mixture of history and culture. Understanding the paradox is particularly important now. In the absence of any other check on discovery, federal and state courts have relied on persuasive sources to protect privacy in pretrial practice, none of which are reflected in the discovery rules. The Supreme Court gutted one of those sources, the federal constitutional right to privacy, in Dobbs. At the same time, technological advancements and increasingly intrusive discovery requests push the boundaries of the rules. It is time to strengthen individual privacy rights in the context of civil discovery requests that implicate intimate and even incriminating details. The early history of discovery rules in the federal system shows no intent that parties to a civil lawsuit waive any privacy rights they might otherwise possess. Rather, the breadth of discovery--intended to prevent secrecy before trial--resulted from grafting equity procedures onto legal claims without retaining equitable guardrails. As technology changed the discovery landscape from designated paper documents to broad categories of electronic databases, broad disclosure became akin to a constitutional right. While digital invasions of privacy were a primary issue for legislative protection and Fourth Amendment concern, no concomitant change occurred in the discovery rules. Instead, courts protected against discovery into private matters by reference to persuasive privacy laws and by use of protective orders, which are increasingly ineffective. This Article proposes a revision to the civil discovery rules that would give explicit protection to information when it is subject to a reasonable expectation of privacy. The revolution initiated by the broad discovery rules did not result in transparency and justice but instead provided tools for abuse. Simply because sensitive information housed in a database or on the cloud is potentially relevant to broad issues in litigation does not mean that it should be presumptively discoverable. Instead, courts should require production only based on a showing of substantial need. Given the erosion of constitutional protection in Dobbs and its intimations for other rights, the legal system must prevent the use of broad discovery to harass, embarrass, and deter access to the courts.

INTRODUCTION 1990 I. ASSERTING PRESIDENTIAL AUTHORITY OVER CROSS-BORDER 1994 DATA FLOWS A. The TikTok Challenge: High Noon on Capitol Hill 1995 B. IEEPA and Personal Data 1999 1. The Road [...], This Article reveals a surprising expansion of presidential authority to control goods and services available in the United States because of the information flows that they entail. Such authority is grounded in laws focused on protecting national security, here with respect to foreign surveillance and propaganda. But broad executive powers over our information infrastructure raises significant concerns with respect to core American values of free expression and due process. Worries about unfettered foreign access to data should be coupled with worries about unfettered executive control over our information services and technologies.

INTRODUCTION 1224 I. THE PROBLEM 1226 A. Staring Down the Barrel of the Spam Cannon 1226 B. Why Is There So Much Spam ? 1230 C. Why Is There So [...], Email spam is more than just annoying. It is costly, both to the individual and to society. This Comment examines these costs through the lens of one type of spam: political fundraising emails. It also proposes two types of solutions. The first is "front-end" regulation, which could include a do-not-email registry or an outright ban on unsolicited bulk email. This type of regulation would address the spam problem by decreasing the overall amount. The second type of solution is "back-end" regulation, meaning subject-line labeling and a requirement that spammers stick to one sender name. This would tackle the problem by decreasing the costs of receiving each spam email. This Comment weighs the advantages and disadvantages of each approach, ultimately concluding that Congress should pursue back-end regulation first because it is more likely to survive First Amendment scrutiny.

Table of Contents Introduction I. The Informational Economy of the Federal Courts A. The Production of Judicial Data B. The Capture (or Flight) of Judicial Data 1. Filings as written [...], Governments and commercial firms create profit and social gain by exploiting large pools of data. One source of valuable data, however, lies in public hands yet remains largely untapped. While the deep reservoirs of data produced by Congress and federal agencies have long been available for public use, the data produced by the federal judiciary is only loosely regulated, imperfectly available to the public at large, and largely ignored by scholars. The ordinary process of litigation in federal courts generates an enormous volume of data. Especially after recent developments in large language models, this data holds immense potential. It can be used to predict case outcomes or clarify the law in ways that advance legality and judicial access. It can reveal shortfalls in judicial practice and enable the provision of cheaper, better access to justice. It can make legible many otherwise invisible social facts that, if brought to light, can improve public policy. Or the data can fuel private profits, its benefits accruing to a small coterie of data brokering firms capable of monopolizing its commercial use. This Article is the first to address the complex empirical, legal, and normative questions raised by the untapped public asset of judicial data. It develops a positive, descriptive account of how federal courts produce, dissipate, preserve, or disclose information. This account includes a map of the well-known sources of Article III data (for example, opinions, orders, and briefs), but also extends to a massive volume of "dark data" produced but either lost or buried by the courts. This positive analysis further uncovers a complex administrative framework that erects a plethora of walls and hurdles--some categorical, and some individuated--to slow down or stop public access. With this positive understanding in hand, we offer a careful analysis of the constitutional questions implicated in decisions to disclose--or to render opaque--judicial data. Drawing attention to the key question of who controls judicial data flows, we demonstrate the existence of sweeping congressional power to regulate judicial data outside of a small zone of inherent judicial authority and a handful of instances in which privacy or safety are implicated by disclosure. Congressional authority, therefore, is the rule and not the exception. Having established these empirical and legal predicates, the Article offers a normative vision of how Congress should regulate the production and dissemination of judicial data in light of the capabilities and incentives of relevant actors. The information produced by the federal courts should not exclusively be a source of private profit for a few data-centered firms. It is a public asset that should be elicited and disseminated in ways that advance the federal courts' mission of equal justice under law.

INTRODUCTION 418 I. THE SCIENCE AND LEGISLATION OF BIOMETRICS 421 A. BIOMETRICS IN THE MODERN WORLD 422 B. MODERN RISKS IN THE BIOMETRICS FIELD 424 C. STATE BIOMETRIC REGULATION 427 [...]

INTRODUCTION Today's students have never known a world without technology. In particular, computers and the internet permeate all aspects of students' lives. (1) The pervasiveness of this technology extends to [...], In recent years, student surveillance has rapidly grown. As schools have experimented with new technologies, transitioned to remote and hybrid instruction, and faced pressure to protect student safety, they have increased surveillance of school accounts and school-issued devices. School surveillance extends beyond school premises to monitor student activities that occur off-campus. It reaches students' most intimate data and spaces, including things students likely believe are private: internet searches, emails, and messages. This Comment focuses on the problems associated with off-campus surveillance of school accounts and school-issued devices, including chilling effects that fundamentally alter student behavior, reinforcement of the school-to-prison pipeline, and disproportionate impacts on certain groups--including low-income students, LGBTQIA2S+ students, and students with disabilities. This Comment argues that the current legal landscape--federal and state laws, the Fourth Amendment, and the First Amendment--inadequately protects student privacy. Drawing on aspects of existing privacy frameworks, this Comment proposes solutions that could be implemented by the Supreme Court, federal and state legislators, and school districts. All of these solutions aim to increase student privacy protections. First, the Supreme Court should clarify whether speech on school-issued devices is protected by adopting clear categories of "school speech" that are subject to discipline. Second, new federal and state protections could bolster student privacy. Such laws should limit data sharing when collected from school-issued devices used at home, mandate data minimization and further limitation of data collected, and implement mandatory tracking of the impacts of student surveillance. Third, school districts should conduct audits and increase transparency to demonstrate their commitment to protect student privacy.

Donald Trump has https://www.cbsnews.com/news/trump-department-of-government-efficiency-doge-elon-musk-ramaswamy/ loyalist and the richest man in the world, Elon Musk, along with former presidential candidate Vivek Ramaswamy, to spearhead an initiative called the Department of Government [...]

The European Union’s NIS2 (Network and Information Security) Directive has come into force to update the first 2016 NIS regulation to better address an increasingly damaging cyber threat landscape. The [...]

INTRODUCTION 866 I. REMEDYING STATUTORY SURVEILLANCE HARMS 868 A. The Problem of Private Digital Surveillance 870 B. The RegulatoryApproach 873 C. The Litigation Approach 875 II. PROCEDURAL PROBLEMS WITH SURVEILLANCE [...], Class actions against online platforms alleging improper data collection and sharing practices have increased dramatically in recent years. In 2022, the Federal Trade Commission solicited public comment on governing these practices, which it termed "commercial surveillance," through rulemaking. This Comment highlights the rise of private commercial surveillance and how both regulation and litigation have been employed to address ensuing harms. This Comment then discusses procedural barriers to these class actions, particularly Rule 23(b)(3)'s predominance requirement and Article III standing, and how some courts have relied on the U.S. Supreme Court's decisions in Comcast v. Behrend and TransUnion v. Ramirez to heighten those barriers. Finally, this Comment makes several substantive recommendations for a federal privacy law that might overcome these procedural barriers, give effect to a private right of action, and complement regulatoryauthority.

Voluminous information about individuals is being shared every day and everywhere. Streamlining data sharing activities effectively allows public and private entities to use information for policy advancement, knowledge creation and business growth. At the same time, such sharing of personal information also risks harming individuals' privacy and autonomy. How are data sharing activities governed in Australia? What are the main problems with the existing legal framework? This article explores three ways in which the interests of individuals whose data is being shared may be better protected. These are (a) improvements in data privacy and data sharing legislation, (b) adapting private law frameworks to create more protective structures (as in the notion of 'data trusts' and 'information fiduciaries') and (c) enhancing data governance through better contracts, including model data sharing agreement templates. We conclude that while law reform may be desirable, particularly along the lines of the first possibility, organisations that truly 'care about privacy' can act now to improve their data sharing practices through better data sharing agreements and the data culture that they cultivate. The Australian Office of the National Data Commissioner can lead the way with a restructured and reimagined data sharing model agreement., CONTENTS I Introduction 96 II Governing Data Sharing through Regulation 103 A The Australian Legal Approach to Regulating Data Sharing 103 Activities: Streamlining Data Flows 1 Data Sharing Framework 105 [...]

I. INTRODUCTION 176 II. DIFFUSE AND 178 CONCENTRATED INTERESTS III. THE ROLE OF COURTS 182 IN PROTECTING DIFFUSE INTERESTS A. Courts as Fixing 182 Democratic Failures B. Courts as Initiating [...], Mancur Olson claimed that concentrated interests win against diffuse interests even in advanced democracies. Multinational companies, for example, work well in unison to suit their interests. The rest of the public is not motivated or informed enough to resist them. In contrast, other scholars argued that diffuse interests may be able to fight back, but only when certain conditions prevail. One of the conditions for the success of diffuse interests is the intervention of national and international courts. Courts are able to fix problems affecting diffuse interests. Courts can also indirectly empower diffuse interests by initiating deliberation to inform the public. This paper investigates the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. It argues that these international courts help consumers, a diffuse interest group, succeed in their struggle against internet companies, a concentrated interest group.

I. INTRODUCTION As humanity has entered the digital age, we have come to possess incomprehensible amounts of recorded information--by some estimates, 295,000,000,000 gigabytes. (1) With such an abundance of information [...]

I. INTRODUCTION In October 2021, LinkedIn announced that it had to exit the Chinese market because it had faced "a significantly more challenging operating environment and greater compliance requirements." (1) [...]

CONTENTS I. INTRODUCTION II. HISTORICAL OVERVIEW OF CONSUMER DATA PRIVACY III. OVERVIEW OF GDPR, CCPA & CPRA, AND THE PDPA IV. ANALYSIS REGARDING ENSURING COMPLIANCE WITH ALL REGULATIONS V. POTENTIAL [...], Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country's citizens' data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, if a company is engaged in extensive data collection, then the company should ensure compliance with all relevant privacy regulations. As new legislative responses emerge worldwide, it is crucial for companies engaged in international business transactions to ensure compliance with the different standards of that extraterritorial legislation.

TABLE OF CONTENTS I. INTRODUCTION 302 II. CRYPTOCURRENCY'S REVOLUTIONARY BEGINNINGS 307 A. How It Works 307 B. How It Became Popular 310 C. How It Has Garnered Government Attention 312 [...], The advent of Bitcoin in 2009 presented a previously unfathomable possibility for the future of currency and monetary transactions. Now, cryptocurrency is ubiquitous; it is increasingly seizing media headlines, novel swathes of investors, institutional bank involvement, and most importantly of all, the attention of government regulators. Yet governments around the globe have failed to adequately keep up with the pace of cryptocurrency's evolution, particularly because of their lack of expertise in this unprecedented area. This Note discusses how cryptocurrency's truly global footprint warrants a partnership between national regulators and industry actors at the international level. Specifically, by exploring the approaches of Japan, China, the United States, and the European Union against the functions and purpose of the international financial regulatory system, this Note argues that the current approaches to global crypto regulation have overly prioritized crypto's effects on traditional financial markets while overlooking the unique role crypto exchanges can play. A common goal towards establishing a meaningful framework grounded in investor protection, reliability, and innovation has thereby been undermined, despite the alignment between the international monetary system's strengths and its capacity to create a global crypto framework. This Note proposes the creation of a specialized cryptocurrency group based on, or molded into, the successful Basel Committee on Banking Supervision, to show how a newly formed partnership between regulators and exchange leaders can establish the future of a sustainable cryptocurrency ecosystem.

TABLE OF CONTENTS I. CYBER THREATS TO CIVILIANS IN ARMED CONFLICT 361 II. OLD LAW, NEW WEAPON 364 A. Offensive Cyber Operations in Armed Conflict 365 B. International Humanitarian Law, [...], Russia's use of offensive cyber operations to further its illegal war against Ukraine has prompted calls for a response to these cyber operations from the International Criminal Court. However, the International Criminal Court is an inadequate forum for adjudicating cyber conduct in armed conflict because cyber operations fit awkwardly into the traditional war crimes legal framework. Furthermore, the Rome Statute's strict substantive and procedural features provide strict limitations on the kinds of cyber conduct that might constitute a war crime against which the Prosecutor of the International Criminal Court could bring an effective case. Because most cyber conduct does not produce kinetic effects, the established framework of international humanitarian law that the Rome Statute reflects does not comprehensively regulate the unique domain in which cyber operations occur. This Note argues that observers have overlooked a more promising way of addressing illegal cyber operations in armed conflict: the right to life under international human rights law. As a more malleable body of law that mutually reinforces international humanitarian law, human rights law--and the right to life, in particular--can capture more cyber conduct and hold armed actors accountable for their harmful effects on civilians. Addressing cyber operations through human rights law will also accelerate the development of the law governing cyber operations and encourage a more interdisciplinary approach to evaluating how the cyber domain is governed by complementary fields of international law.

This article was originally published in the National Traffic Law Center's Between the Lines newsletter in October 2023 under NHTSA cooperative agreement 693JJ91950010. It is reprinted here with the permission [...]

INTRODUCTION 401 I. THE NEW ABORTION LEGAL LANDSCAPE 406 A. The Anti-Abortion States 407 B. The Pro-Access States 412 C. Practical Impacts 413 II. CONSTITUTIONAL RESTRICTIONS ON EXTRATERRITORIAL ABORTION 416 [...], On the subject of abortion, the so-called "United" States of America are becoming more disunited than ever. The U.S. Supreme Court's precipitous decision in Dobbs v. Jackson Women's Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and the District of Columbia have adopted new legal regimes focused on protecting the right to an abortion. These partisan and geographic divides create perhaps the biggest set of nationwide conflicts of law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state versus state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access. This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts of law questions might be resolved in the abortion context. Part I surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part II discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under the Commerce Clause of Article I, Section 8. Part III turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part IV addresses the question of whether states can impose civil liability on out-of-state acts or actors--even beyond the right to travel and Commerce Clause concerns--focusing on the classic conflicts of law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part V considers the activities of private actors as sources of regulatory authority that create conflicts questions. We discuss the degree to which a state may prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws.

I Introduction II Algorithms, Discrimination and the Workplace III Towards a Framework for Accountability A Privacy Law and Data Protection B Limits of Privacy Law C Third-Party and Accessorial Liability [...], Algorithmic discrimination represents a growing challenge for equality law. While the elimination of discrimination in employment and occupation is a fundamental obligation of International Labour Organization members, Australian equality law remains ill-adapted to respond to emerging risks. This article argues that the automated application of machine learning algorithms presents five critical challenges to equality law related to the scale of data used; their speed and scale of application; lack of transparency; growth in employer control; and the complex supply chain associated with digital technologies. Considering principles from privacy and data protection law, third-party and accessorial liability, and collective solutions, this article puts forward reforms and suggestions to better set the framework for accountability for algorithmic discrimination in the workplace.