Volume 3, Issue 2
INTRODUCTION: CREATING LEGITIMATE DIGITAL PRIVACY RIGHTS FOR INTERNET USERS
Privacy has become a complex legal issue as technological advancements have created a multitude of ways, both physical and digital, that one’s privacy rights can be violated. Although the Supreme Court has declined to recognize a constitutional right to digital privacy, the increasing pervasiveness of digital privacy intrusions may encourage the Court to find that a right to digital privacy exists within the penumbra of rights established by the Constitution. The lack of protection for digital privacy rights, whether oral or written, presents a wide range of novel challenges to our existing legal and social structures. This “privacy issue” of the Rutgers Journal of Law & Urban Policy explores the dichotomy in treatment between physical and digital privacy rights through several different articles, each of which provide unique perspectives on physical and digital privacy rights. View More
Daniel B. Garrie
BINDING CORPORATE RULES FOR CROSS-BORDER DATA TRANSFER
David Bender, and Larry Ponemon
Companies today confront unprecedented legal challenges when they seek to transfer personal data between different nations. Many nations have recently enacted “data protection” laws, designed to protect the personal information of individuals. Although protecting the personal information of individuals is surely a worthwhile goal, the enactment of these laws has nevertheless encumbered the ability of companies to process and move the personal data they collect. The legal challenges faced are perhaps greatest as they relate to multinational or global companies, many of which are based in the United States. This article describes the nature of these problems, the status of one potential solution that many companies are pursuing – “binding corporate rules” (“BCRs”) – and offers the findings from Ponemon Institute’s 2003 & 2005 Benchmark Study on Corporate Privacy Practices on how companies are responding to global privacy standards. View More
PRIVACY: THE DELICATE ENTANGLEMENT OF SELF AND OTHER
Alan Blakley
Privacy is an entanglement of public, individual, and governmental interests. This article does not attempt to provide a compendium of United States Supreme Court cases charting a “right to privacy.” While some case law, both United States Supreme Court and other courts, is included, the purpose of the article is not to describe the development of a United States right of privacy, nor present an apology for any particular iteration of such a right to privacy, either expanding or contracting what the courts have defined privacy to be up to this point. Nor does the article attempt to propose a single judicial or legislative approach to privacy. Moreover, even though the article contains some of the history of thought on privacy, that history is quite abbreviated and woefully incomplete. The portions of history on privacy included merely illustrate some of the development of thought on the topic, rather than attempting to gather or analyze all of the thought. Those readers seeking such assistance should look elsewhere. This article also contains no definitive solutions to any of the entanglements discussed and analyzed. It does, however, propose a method of talking about privacy that may lead to more clarity for future analysis. View More
THE RIGHT TO DIGITAL PRIVACY: A EUROPEAN SURVEY
Eric Caprioli, Ygal Saadoun, and Isabelle Cantero
The right to Privacy has drastically evolved since its emergence and has become an entrenched right across most modern democracies. The first recognition of this right was made centuries ago in Europe, but proper legal enforcement tools were slow to develop. The nature of this right implied such a delay. Indeed, throughout the Enlightenment, which reached its peak during the 18th and 19th centuries, liberty-seekers across the western world primarily fought to restore those fundamental rights that were needed to freely and equally participate in governance. First set out by the Athenian democracy, those rights had been mostly abandoned and excluded from the political and philosophical landscape which had become dominated by monarchies and autocracies. View More
Gary T. Marx
Much of the attention to contemporary privacy invading technologies focuses on the actions of governments and large organizations. Yet the actions of big brother and big corporation must be seen alongside of those of little sister and brother, not to mention mom, dad, friends and strangers. Interpersonal uses of the technologies are a prominent and prominently neglected part of the issue. View More
Lauren A. Rousseau
The cover story of a recent issue of Newsweek Magazine was entitled “The Scary New World of Identity Theft” and asked the question, “Are You A Victim?” The article informed an already concerned readership that identity theft is the “fastest-growing crime of this century” and that perpetrators steal approximately $53 billion per year through assuming the identities of millions of victims. The article further confirmed what most of its readers already knew – that identity theft occurs through the thief’s acquisition and use of personal information regarding his or her victims. Crooks are becoming increasingly creative in devising schemes that enable them to acquire such information. View More
Justin Stec
The homeless have questionable and variable access to legitimate private space. They live over time with little consistent unperturbed space to develop and manifest their inner identity in outward actions. They have no free space to experiment, make mistakes, or just “be” themselves, to learn or grow in a comfortable environment. Unlike the homed, the homeless lack liberty in this respect. Physically, the homeless do not have the option to exclude others because they lack the financial capital to barricade their private sphere in a legally recognized manner. As such, their ability to materially and psychologically function as “normal” is reduced and, in turn, their ability to portray “reasonableness” to a judge or third party is lessened. The law categorizes space in a way that augments this phenomenon, rather than disrupts it; law strips the homeless of precious autonomy. In particular, the context of homelessness is not enunciated nor enforced in search and seizure jurisprudence, yielding contextual and abstracted decisions that recapitulate current power schematics, regardless of the intention of lawmakers. View More