Search

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 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.

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 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) [...]

I INTRODUCTION Discussions of a singular common law tort of privacy have been present for decades but never gained any meaningful traction in senior courts. (1) In New Zealand, the [...], The New Zealand common law has been hesitant to recognise the multifaceted nature of modern privacy invasions. In an attempt to maintain certainty and conceptual clarity, the courts have developed two privacy actions: the tort of wrongful publication of private facts, and the tort of intrusion upon seclusion. These torts protect distinct types of wrongful conduct and different privacy interests, despite sharing almost identical structural requirements. However, the categorisation of privacy actions is becoming increasingly artificial as the characteristics of the torts overlap. In practice, both informational and physical privacy interests may be relevant to a singular claim. Furthermore, in the light of recent developments to the publicity requirement, the circumstances distinguishing one tort from the other are now as little as a disclosure to a singular individual. This article argues the existence of separate torts is becoming increasingly illogical and unduly restrictive when grappling with nuanced problems posed by emerging privacy threats. If the privacy framework is to adapt to the modern world, discussions of a singular tort ought to be reignited, albeit from a different angle. By reconfiguring the descriptive and normative tools currently deployed by courts, a singular tort will enable more flexible, cohesive and workable privacy protection.

I Introduction Millions of Australian consumers use digital platforms like Facebook whose functionality is underpinned by transnational corporate groups that purport to silo certain functionality into certain jurisdictions. Transnational corporate [...], In Facebook Inc v Australian Information Commissioner, the High Court of Australia will consider whether the American parent company behind the social media platform is amenable to the Federal Court of Australia's jurisdiction in proceedings brought in the wake of the Cambridge Analytica data privacy scandal. The central issue is whether Facebook Inc 'carries on business' in Australia so as to be within the extraterritorial reach of the Privacy Act 1988 (Cth). I argue that it does. Although traditional indicia for 'carrying on a business' may be absent in Facebook Inc's operations as relevant to this case, the assessment should be approached having regard to the limitations of territorial thinking for analysis of digital subject matter. A purposive construction of the Privacy Act favours this analysis. I argue that the Federal Court was warranted in finding that the Commissioner had established a prima facie case sufficient to justify the Court's exercise of its long-arm jurisdiction.