Archives

Orin Kerr, The Case for the Third Party Doctrine

By privacylaw | Posted on

Orin Kerr, The Case for the Third Party Doctrine

Comment by:

PLSC 2008

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128

Workshop draft abstract:

This article offers a defense of the Fourth Amendment’s third-party doctrine, the controversial rule that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power. This article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses.

The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. The third-party doctrine corrects for the substitution effect of third parties that would otherwise allow savvy criminals to substitute a hidden third-party exchange for a previously public act. Second, the doctrine helps ensure the clarity of Fourth Amendment rules. It matches the Fourth Amendment rules for information to the rules for location, creating clarity without the need for a complex framework of sui generis rules.

Finally, the two primary criticisms of the third-party doctrine are significantly weaker than critics have claimed. The third-party doctrine is awkward for reasons of form rather than function; it is a consent doctrine masquerading as an application of the Katz “reasonable expectation of privacy” test. Claims that the doctrine gives the government too much power overlook the substitutes for Fourth Amendment protection in the use of the third parties. Those substitutes include entrapment law, common law privileges, the Massiah doctrine, the First Amendment, internal agency regulations, and the rights of the third parties themselves.

Aaron Burstein, Toward a Culture of Cybersecurity Research

By privacylaw | Posted on

Aaron Burstein, Toward a Culture of Cybersecurity Research

Comment by: Aaron Burstein

PLSC 2008

Published version available here:

Workshop draft abstract:

Research being conducted by computer scientists offers great promise in improving cybersecurity threats in the short and long term.  Progress in cybersecurity research, however, is beset by a lack of access to data from communications networks. Legally and informally protected individual privacy interests have contributed to the lack of data, as have the institutional interests of organizations that control these data. A modest research exception to federal communications privacy law would remove many of the legal barriers to sharing data with cybersecurity researchers. This reform would also counter many of the non-legal objections, such as cost and user backlash, that network providers cite as reasons not to share data with researchers.

Christine Jolls, Privacy, Rationality, and Consent

By privacylaw | Posted on

Christine Jolls, Privacy, Rationality, and Consent

Comment by: Christine Jolls

PLSC 2008

Workshop draft abstract:

The relationship between privacy rights and consent has been at the heart of privacy debates for decades.  Prominent theorists have placed consent at the core of their definitions of privacy, and at the level of doctrine the traditional common law approach has viewed consent as a categorical defense to claims of privacy invasion.  But both the theorists and the traditional common law approach are focused on circumstances quite different from the highly relational contexts in which questions of privacy and consent often arise today.  In the workplace and other such relational contexts, predictable human failures of rationality frequently undermine the normative force of consent.  While blanket in-advance consents are often sought, and received, for privacy invasions that might (or might not) materialize down the road, failures of rationality are a serious concern in these contexts.  Interestingly, the common law of workplace privacy seems to reflect an implicit awareness of these failures of human rationality, as the legal force of consent is often blunted in just the contexts in which failures of rationality are most likely.  In this sense the common law of workplace privacy can be said to track other common law rules, in areas ranging from tort law to corporate law to patent law, that are believed to reflect an implicit behavioral rationality.