Blurred vision: How supreme court FOIA opinions on invasion of privacy have missed the target of legislative intent

The framers of the Freedom of Information Act believed that in order to make informed decisions concerning self‐rule in the democracy, citizens needed access to government information. However, the law also acknowledges the importance of protecting privacy—two of the FOIA's exemptions allow federal agencies to withhold information that would invade the privacy of individuals. The purpose of this article is to explore the legal conflict between an individual's right to privacy and the public interest in disclosure of government information. In an examination of seven United States Supreme Court decisions on this subject, this article questions whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in the FOIA.     

Waiver of the psychotherapist-patient privilege: implications for child custody litigation

The psychotherapist-patient privilege, rooted in both common and statutory law, is predicated upon the public policy goal of protecting the reasonable expectation of privacy of individuals seeking psychotherapy. The privilege is not absolute, however. State and federal courts are far from uniform in determining how and when the privilege should be waived, in whole or in part, through implication, inadvertence or the affirmative action of the parties. In the family law context, the law that has evolved around the exercise of this privilege is even more complex as the needs of children add another wrinkle to the goal of balancing the imperative of confidentiality with the need for useful information that may be provided.     

Pondering personal privacy: a pragmatic approach to the Fourth Amendment protection of privacy in the information age

As technology with surveillance capacities has advanced, the debate over the rights of the citizenry to be free from governmental breaches of personal privacy has intensified. Within the United States, government actions legally challenged as intrusions into personal privacy have been analyzed under the Fourth Amendment, but Supreme Court rulings in such cases lack a clear and consistent rationale. Additionally, while more than a dozen federal privacy statutes have been enacted, each piece of legislation pertains to a specific type of information (e.g. driver’s license information, education records, and financial records). There is no overarching federal legislation which protects the individual’s private affairs from warrantless government inspection. A key issue underlying the scope of the debate and the variation in court decisions and public policies pertinent to invasions of privacy by government agencies is the lack of a clear and cogent definition of ‘privacy.’ By means of a review of the evolution of legal protections of privacy under the Fourth Amendment and a review of the evolution of technology with surveillance applications, it is suggested that there is a need for a sound operational definition of privacy. As a starting point for an informed and pragmatic dialogue on this matter, an operational definition of privacy built upon extant case and statutory law is provided.     

From the Field to the Courthouse: Should Social Science Research Be Privileged?

Social scientists need clarification about the extent to which the confidential aspects of their research are protected from compulsory disclosure in legal proceedings, and the extent to which they ought to be. Investigating the nature of social science research with an emphasis on researcher-participant relationships in ethnographic practice, I conclude that a qualified privilege would confer three major benefits on social science researchers: confidence that the government will not unnecessarily interfere with research, facilitation of improved researcher-participant relationships, and increased accuracy, thoroughness, and reliability of research data. I also discuss the development of privilege and confidentiality issues in practical research contexts through an examination of two criminal cases in which social science researchers refused to divulge the confidential information obtained in the course of research. Finally, I discuss the possible formulations of a scholarly research privilege. This is especially important because courts have cast social scientists as members of the larger community of academic or scholarly researchers with respect to these issues. Potential sources of protection include state journalist protection laws, federal common law, and federal statutory law. Evaluation of these sources and the case law to which they correspond suggests that developing common law privileges in state and federal jurisprudence is the most promising means of affording the confidential aspects of social science research legal protection. As researchers continue to press privilege     

Smart meters and the information panopticon: beyond the rhetoric of compliance

The Smart Meter Implementation Programme is the Government's flagship energy policy. In its search for solutions to address privacy dilemmas raised by smart meters, the Government has been content with using data protection principles as a policy framework to regulate the processing of consumers' personal information. This is worrying since the question of who has access to what type of information and how it is used cannot simply be regarded as raising information security, authenticity and integrity issues. If we are to go beyond the rhetoric of protecting the privacy rights of energy consumers we must scrutinise the context in which legitimate interests and reasonable expectations of privacy subsist. To remedy this apparent policy oversight, the paper undertakes two tasks: first, to clarify the content and application of data protection and privacy rights to smart meters; and second, it outlines a policy framework that will address the lack of specificity on how best innovation and privacy issues can be better calibrated. More importantly, it calls for targeted substantive reforms, development of accessible privacy policies and information management practices that promote transparency and accountability and deployment of technological solutions that will help reduce emerging fault lines between innovation and privacy in this sphere of energy policymaking.     

The politics and policies of enhancing trustworthiness for information systems

This article describes how the integration of computing and communications complicates policy choices for protecting information systems. The technical challenge in the aggregate can be labeled “trustworthiness.” Its dimensions include information security, privacy of personal data and system safety and reliability. Although a holistic technical approach is promising, forging a consistent policy solution is another matter. Proposals for new institutions recur, while calls for public‐private partnership are a new theme. Yet industry signals growing discomfort with government programs associated with national security and law enforcement, fueling conflict and controversy over cryptography policy. Meanwhile, more federal agencies are addressing relevant issues, and more private sector organizations have entered the advocacy game. The article describes multiple policy legacies, key players and perspectives and policy trends. It outlines issues that shape the context for policy that responds to dependence on networked information systems.     

Medical Marijuana Registries: A Painful Choice?

Though the medical use of marijuana is legal in thirty-three states, it remains illegal under the federal Controlled Substances Act. Any marijuana use can subject individuals to severe criminal and civil penalties under federal law. States that condition patient access and treatment on registration in a state database impose real risks on their citizens. Although many scholars have written about the tension between federal and state treatment of marijuana, this is the first article to examine marijuana patient registry privacy and fundamental rights issues. This article first reviews the relationship between marijuana use and patient treatment, with a focus on health-care and privacy rights under state and federal law. The article then explains how marijuana registries compare to broader patient registries, such as contagious disease and other medical condition patient registries, and the unique issues presented by marijuana patient registries. It then discusses the elevated risk to constitutional, privacy, and fundamental rights that may result if states do not carefully construct marijuana registries. The article concludes by proposing principles for how both states and dispensaries should approach marijuana registries in order to provide health benefits and avoid harm to patients.     

The USPS as an OSP: A Remedy for Users’ Online Privacy Concerns

New digital technologies, and a legal system that has failed to keep pace, are allowing government and the private sector to engage in unparalleled unauthorized surveillance of online personal data contained in emails and in the aggregation of users’ online searches. This article argues that the U.S. Postal Service — compelled to protect communications privacy by its enabling statute, the Fourth Amendment, and other federal laws — should provide email and browser-search engine services to shield users from unauthorized online behavioral marketing and tracking by the private sector and metadata collection by government, and, just as important, give users legal remedies against such abuses. To that end, this article provides a legal analysis and rationale to support the USPS's authority to offer such nontraditional postal services.     

美国法上“记者”的含义

在美国各州,记者享有在法庭上拒绝作证的权利,因此,哪些人是记者,即法律上确定"记者"的含义非常重要。美国存在联邦和州两个法律体系。在联邦法律体系中,至今不承认记者有拒证权。而在各州的法律体系中,36个州和哥伦比亚特区存在保护记者拒证权的"盾牌法"。根据立法和判例,美国法律认为所有以从事大众传播为目的的媒体记者都可以是记者,无论是出版社、报刊、广播、电视还是互联网站、博客或者其他电子媒体。个人要成为实质上的记者必须具备两个条件:一是实际参与了将要发表或者已经发表的报道的调查与采访;二是在开始收集新闻的过程中就有将报道向公众传播的明确意图。记者也不总是那些已经发表了作品的人,对于有证据证明,其调查、采访、写作的目的是为了完成作品向大众传播,那么无论他处于调查、采访、写作的哪个阶段,他都是"记者",可以享受记者拒证权。     

Public trust and privacy in shared electronic health records

The development of information and communication technology in health care, also called eHealth, is expected to improve patient safety and facilitate more efficient use of limited resources. The introduction of electronic health records (EHRs) can make possible immediate, even automatic transfer of patient data, for health care as well as other purposes, across any kind of institutional, regional or national border. Data can thus be shared and used more effectively for quality assurance, disease surveillance, public health monitoring and research. eHealth may also facilitate patient access to health information and medical treatment, and is seen as an effective tool for patient empowerment. At the same time, eHealth solutions may jeopardize both patient safety and patients' rights, unless carefully designed and used with discretion. The success of EHR systems will depend on public trust in their compatibility with fundamental rights, such as privacy and confidentiality. Shared European EHR systems require interoperability not only with regard to technological and semantic standards, but also concerning legal, social and cultural aspects. Since the area of privacy and medical confidentiality is far from harmonized across Europe, we are faced with a diversity that will make fully shared EHR systems a considerable challenge.     

No Confidence: Confidentiality,Ethics and the Law of Academic Privilege

The law recognizes several evidentiary privileges, including a qualified privilege recognized by statute or court precedent in forty-eight states and several federal circuits that allows journalists to protect confidential sources. Meanwhile, ethical practices for social science surveys require pledging confidentiality to respondents, a practice that can conflict with subpoenas and court orders requiring revelation of such information. Only a handful of court decisions have formally recognized a privilege for scholars similar to a reporters’ privilege, and an examination of the court decisions that have either ruled on or discussed the issue reveals that while many courts recognize the interests of scholars in confidentiality, most courts decline to recognize a legal privilege for researchers. Courts do, however, often limit disclosure to accommodate these concerns. The specific circumstances and rationales of these decisions are discussed and analyzed.     

Roe v. Wade is constitutionally unprincipled and logically incoherent: a brief in support of judicial restraint

This "amicus curiae" brief was submitted by the Center for Judicial Studies and 56 members of Congress. They were concerned that "Roe" expands powers that belong to Congress and the states into the realm of federal government. Part I of the brief dealt with Missouri's claim that the laws that were at issue in "Webster" were permitted under "Roe" and shouldn't have been made invalid by lower courts. Most of the brief was in Part II. The thrust of it was that "Roe" was not based on any principle and is incoherent internally; "Roe" said that a privacy right existed under the US constitution. However, "Roe" didn't define this right of personal privacy. "Roe" cited a "line of decisions" to prove this point. However, none of the cases that "Roe" cited pretended to be based on the "right to privacy." They dealt with other issues. "Botsford" was said to be the beginning of the constitutional privacy right. It dealt with a "common law rule of evidence," not a right that was in the constitution. Therefore, it did not define the privacy right. "The process by which "Roe" moved from privacy to abortion was unfounded by judicial fiat." "Roe" said that it was protected by "the compelling interest standard," but did not give a reason why this was so. In "Roe," the woman';s interest in getting an abortion was analyzed in medical terms. But when talking about the State's interest in protecting potential human life, medical considerations were not controlling. Part III of the brief asked that "Roe" be overturned because it said that "a privacy right to abortion" was "devoid of any linkage to the text or history of the constitution." "Roe" should be abandoned because its "inadequacies" are "basic".     

The conflict of patient privacy and the Freedom of Information Act

The purpose behind the Freedom of Information Act was to permit greater access by the public to information held by the federal government. In promoting this democratic ideal, little attention was focused on a potential problem that this access to government-held information might cause: violation of another individual's right to privacy. This article examines a recent case in which these two goals came into conflict.     

浅析突发事件中的信息自由与信息管制

信息自由作为一项基本人权理当受法律保护,但基于个人隐私、国家利益、社会安全等法理,对信息的搜集、传播、公开,进行一定限制也是必要的。以我国突发事件中政府保障信息自由和限制信息流动的实际为出发点,透过比较法的视角,对政府在突发事件中保障公众信息自由的适宜路径,政府实施信息管制的正当性法理、具体标准以及程序要求等法律问题进行探索,具有实际意义。     

医疗损害赔偿案件中若干问题的思考

《侵权责任法》关于医疗损害责任的归责原则、免责事由、医疗机构实施过度医疗的责任以及患者知情权和隐私权的保护做出了更为明确和系统的规定,这在医疗损害赔偿立法史上是一个巨大的进步,对于维护医患双方的合法权益必将发挥重要的作用。     

Protecting Journalists’ Sources Without a Shield: Four Proposals

Journalists’ right to protect the identities of their confidential sources relies on an inconsistent set of court decisions based on constitutional and common law interpretations and state statutes. Efforts to bring some consistency to federal law through the passage of a shield law have stalled while journalists face new threats because of the vulnerability of their communications to discovery and monitoring by third parties. Also, the entry of non-professional communicators into the news ecosystem is causing courts to reevaluate and redefine long-standing protections. This article proposes four ways that sources could be better protected from unmasking without the passage of a shield law: improving whistleblower laws to better protect people who report illegal or unethical actions to the media; vastly reducing the number of government secrets to make “leaking” less attractive or necessary; changing legal strategy to focus on protecting the anonymity of sources instead of the rights of journalists to keep secrets; and more widespread and intelligent use of encrypted applications and software could all improve the security of journalistic sources. Because of the complexity of amending multiple whistleblower protection laws and changing the government’s document classification system, the article argues that the best solutions may be to persuade news organizations to change legal tactics and to use better encryption technology.     

Smartphone platforms as privacy regulators

A series of recent developments highlight the increasingly important role of online platforms in impacting data privacy in today's digital economy. Revelations and parliamentary hearings about privacy violations in Facebook's app and service partner ecosystem, EU Court of Justice judgments on joint responsibility of platforms and platform users, and the rise of smartphone app ecosystems where app behaviour is governed by app distribution platforms and operating systems, all show that platform policies can make or break the enjoyment of privacy by users. In this article, we examine these developments and explore the question of what can and should be the role of platforms in protecting data privacy of their users.The article first distinguishes the different roles that platforms can have in ensuring respect for data privacy in relevant ecosystems. These roles include governing access to data, design of relevant interfaces and privacy mechanisms, setting of legal and technical standards, policing behaviour of the platform's (business) users, coordinating responsibility for privacy issues between platform users and the platform, and direct and indirect enforcement of a platform's data privacy standards on relevant players. At a higher level, platforms can also perform a role by translating different international regulatory requirements into platform policies, thereby facilitating compliance of apps in different regulatory environments. And in all of this, platforms are striking a balance between ensuring the respect for data privacy in data-driven environments on the one hand and optimization of the value and business opportunities connected to the platform and underlying data for users of the platform on the other hand.After this analysis of platforms’ roles in protecting privacy, the article turns to the question of what should this role be and how to better integrate platforms in the current legal frameworks for data privacy in Europe and the US. The article will argue for a compromise between direct regulation of platforms and mere self-regulation, in arguing that platforms should be required to make official disclosures about their privacy-related policies and practices for their respective ecosystems. These disclosures should include statements about relevant conditions for access to data and the platform, the platform's standards with respect to privacy and the way in which these standards ensure or facilitate compliance with existing legal frameworks by platform users, and statements with respect to the risks of abuse of different data sources and platform tools and actions taken to prevent or police such abuses. We argue that such integration of platforms in current regulatory frameworks is both feasible and desirable. It would make the role that platforms already have in practice more explicit. This would help to highlight best practices, create more accountability and could save significant regulatory and compliance resources in bringing relevant information together in one place. In addition, it could provide clarity for business users of platforms, who are now sometimes confronted with restrictive decisions by platforms in ways that lack transparency and oversight.     

The federal government and academic texts as barriers to informed consent

Informed patient consent for medical treatment is required by both law and medical ethics. Yet, both federal agencies and academicians are participating in the suppression of information about the heightened risk of breast cancer posed by oral contraceptives and induced abortion. There is historical precedent in the long-delayed acknowledgement of the smoking/lung cancer link. By law, a patient has the right to be fully informed of the nature of her medical condition and any proposed course of therapy. It is assumed that a patient will be given the complete and true scientific basis of her diagnosis and treatment, to ensure that her well-being and her autonomy in decision-making are protected. Informed consent is the process by which a patient can participate in choices about medical treatment. It originates from the legal and ethical right of the patient to direct what is done to her body, and from the ethical duty of the physician to involve the patient in her medical care. Our federal government has become a barrier to informed consent concerning oral contraceptive drugs and induced abortion.     

Republication of Foreign Government Statements: The Fair Report Privilege in U.S. Libel Law Reexamined

Whether news reports concerning foreign government proceedings enjoy the same level of protection from tortious liability as reports concerning domestic government proceedings is a question of great consequence for media in the United States, especially given the ever-increasing globalization of political and economic affairs. A growing number of libel cases generated by international journalism based in documents and meetings of government officials in other nations are testing the well-established fair report privilege in state and federal courts. This article, after analyzing the history, cases and commentary on the subject, concludes by recommending a liberal privilege for such reporting.     

Privacy regulations on biometrics in Australia

This paper aims to provide an analysis of the current regulatory environment, at the federal level, of privacy protection concerning biometrics in Australia. The study only focuses on the federal Privacy Act 1988 (Cth) and the Biometrics Institute Privacy Code. The discussion is based on the legal concerns of the use of biometrics, and an analysis is made concerning the implications of privacy protection sources.