John Marshall Law School
Spring 2003
Tuesday 4pm-6pm
Adjunct Faculty 773-271-7600
Office Hours: Monday 8pm-9pm
Or
by appointment
http://www.privacyresolutions.com/jmls/
Events that occurred on September 11, 2001 continue to affect our lives. We continue to adapt to the manner in which our sense of security, our fears, and our conversations have changed. As our nation’s efforts continue to root out terrorism and suspected terrorists, our laws also have changed and continue to change so as to provide increased flexibility for law enforcement and government intelligence agencies. Many of these changes will have a dramatic effect upon the law, our lives, and our privacy. This seminar asks the question: Are these changes “good” because they respond to terrorism or must these changes be examined and freely questioned to ensure the very freedoms the terrorists have attacked? How do we continue to balance the needs of enforcement and investigation with the principles of privacy at the foundation of our Constitution.
This seminar will examine privacy rights in the post-911 world. Beginning with a brief history of privacy law, we will engage in a thorough collaborative examination of privacy law post-911. We will place significant emphasis on the federal security legislation and Executive Orders post-911 relating to the expansion of police powers. From this basis, we will discuss privacy as it relates to criminal investigations and wartime civil liberties, the Fourth Amendment, anonymity and surveillance (by government and private institutions), the attorney-client privilege, and personal communications. We will also examine more traditional notions of privacy law (i.e. common law torts and autonomy) and any impact recent events have had on them. While our primary focus will be on the United States, some comparison and exploration of foreign jurisdictions will occur. Through these analyses, we shall be on the forefront of privacy law in the post-911 world.
Privacy Rights CD-ROM
(This CD-ROM will contain most of the specified readings below and will be distributed during the second class.)
Additional materials on website: http://www.privacyresolutions.com/IT845
Newspaper (WSJ, NYT, USA Today, etc.)
(Each seminar participant will be required to review a national newspaper each week and pull any articles relevant to our seminar discussions.)
Recommended: Smith, Robert Ellis. Ben Franklin’s Web Site Privacy Journal (2000).
The course will involve significant participation; a small, individual presentation to your colleagues; and a written assignment.
A seminar course requires the participation of every student to provide the full educational impact and level of shared discussion necessary to achieve the seminar objectives. Consequently, it is essential that every student participate in classroom discussions and on the email listserv (IT845@privacyresolutions.com). As always, quality is valued more than quantity. That being said, one should not feel hesitant to share an idea or comment.
Participation is also weighed by the student’s efforts to supplement the seminar materials with articles read in national newspapers and on various Internet sources. Consequently, each student will be required to monitor a national news source and bring relevant articles to class (or to share a link on the listserve where the article is located on the web) for distribution and discussion.
Each student must also submit three substantive discussion questions by 12 noon on each day of class. These discussion questions must reflect an understanding of the materials assigned for reading and be provocative enough to engender discussions amongst one’s peers. The quality of these questions and the participation by the students will form an essential portion of the participation grade.
Each seminar participant shall present an oral presentation on a topic approved by the instructor and within the scope of the seminar. It is highly recommended and encouraged that the presentation be accompanied by supporting materials – ideally both electronic and print (examples may include hard copy outlines, powerpoint, online demonstrations). The presentation should include a survey of the current state of the law in the particular area, cases of interest, legislative action, controversies, and trends.
It is contemplated that approximately one half hour of class time will be devoted to each oral presentation. We will schedule the presentations during the last half of the semester.
Students are encouraged to distribute abstracts, questions for discussion, or other material related to their presentation in advance.
Research Paper (50%)
Each seminar participant shall be responsible for an original research paper of a style and quality suitable for publication in a law review or other professional journal. The paper should address a narrow topic approved by the instructor and within the scope of the seminar. The research paper may (but need not) address the same topic or a similar topic as a student's oral report. However, the topic may not be one on which the student has written another paper for academic credit.
TIMELINE:
Week Four – Submit one-age abstract.
You should submit an abstract that identifies your issue, the questions deemed worthy of exploration, the scope of your research paper, and the intended relevance/impact of your research paper. The abstract should be single spaced; one inch margins; one line between title, name, and content; and no more than 500 words.
Week Eight – Submit proposed bibliography
You should submit a list of articles and sources you have found thus far in your research. The citations should be in blue book form. No limits; not necessary to have read all of them as of yet.
Week Twelve – Submit annotated bibliography
You should submit a revised list of articles and sources used. The citations should remain in blue book form. In addition, you should provide a concise paragraph statement on what the citation offers the reader. Ideally, this exercise will allow you to identify the sources most relevant to your research paper.
Finals Week – Submit final research paper.
The following represents our schedule of readings for the forthcoming semester. Though some weeks might look extensive, many of the readings consist of a few pages. Nonetheless, the readings conform with a graduate level of study. All of the readings will be thought provoking. Consequently, all of our classes will be interesting and provocative.
Please note that the nature of the subject matter covered in this course will prompt the need for supplemental articles that appear as time progresses and issues arise in the news.
Course Introduction
Read T&A Chapter One Introduction 1-29, 51-74
“Address by the Privacy Commissioner of Canada” delivered to the Privacy Lecture Series March 26, 2001 Toronto, Ontario, George Radwanski Privacy Commissioner of Canada.
http://privacy.openflows.org/pdf/radwanski_march26_2001.pdf
“The
Right to Privacy,” 4 Harvard Law Review 193 (1890).
Recommended: Ben Franklin’s Web Site
Lecture on Privacy Tort Common Law Tort Privacy Rights
Damages for Breaches of Privacy, Legal Authorizations and Mergers
and Takeovers in U.S. Law. Memorandum to European Commission, U.S. Department of Commerce
(July 14, 2000).
http://www.export.gov/safeharbor/PRIVACYDAMAGESFINAL.htm
Anita Allen. Gender and
Privacy in Cyberspace: Uneasy Access: Privacy for Women in a Free Society. Stanford Law Review May 2000.
Introduction to Privacy and Terrorism
DOJ Field Guidance Memorandum on Surveillance
STUDENT RESOURCE: Each student must choose one of recent acts to study and discuss later in semester.
Beth Allen, "Same Sex Marriage: A Conflict-of-Laws Analysis
for Oregon," Willamette Law Review (Summer 1996), 619-75 (To Be Provided)
Sterling v. Borough of
Minersville, 232 F.3d 190 (3d Cir. 2000).
Shannon P. Duffy, “Outing Gay Man Violated Constitutional
Right to Privacy, 3rd Circuit Holds,” The Legal Intelligencer,
November 7, 2000.
Recommended Film: Guilty By Suspicion
Joshua A. Plosker, Note, Privacy on Thin Ice? Considering the California Court of Appeal Decision in Johnson v. Superior Court, 41 Jurimetrics J. 73-83 (2001).
(To
Be Provided)
Explore: http://www.sexoffender.com
Explore: http://www.crimetime.com/SPguide.htm
Jessica Reaves, “Does a sex
offender have a right to privacy?” CNN.com, April 20, 2000.
Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000).
Voluntary Cams
George Poste. Privacy and
Confidentiality in the Age of Genetic Engineering, 4 Texas Review of Law &
Politics (1999).
Recommended Film: Gattaca
Overview – Identity Theft
Kevin Spacey v. Jeffrey Burgar
Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2000).
DOD Total
Information Awareness Project
Examine Identity Theft Proposals – What Needs to Be Done?
E-Mail Privacy FAQ
Electronic Communications Privacy Act
Katz v. United States, 389 U.S. 347 (1967).
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001).
Kelleher v. City of Reading, 2001 WL 1132401 (E.D.Pa. Sep 24, 2001).
U.S. v. Maxwell, 45 M.J. 406 (1996).
Commonwealth of Pennsylvania v. Rekasie, 778 A.2d 624 (Pa. March 8, 2000).
“Argentina Peeks Into E-Mail Law,” Wired News November 14, 2001.
http://www.wired.com/news/politics/0,1283,48291,00.html
University of North Carolina – Wilmington materials (see CD-ROM)
Wireless Communications: Cordless/Cellular Phones and Pagers
http://www.consumer-action.org/Library/English/Privacy/PV-I-15_EN.html
Recommended Films: The Conversation, Enemy of the State
PLEASE NOTE ASSIGNMENT DUE FOR NEXT WEEK INVOLVING YOUR RESEARCH.
“The Defense of Privacy Claims.” Gail E. Lees. 2000.
Student Resource: Each student shall have found a privacy case and distribute pleadings and opinions related thereto.
Donato, et al. v. Moldow Case Materials and Decision
Donato, et al. v. Moldow Article
Dendrite International, No. A-2774-00T3, 2001 WL 770406 (N.J.
Super Ct. App. Div. July 13, 2001).
http://lawlibrary.rutgers.edu/courts/appellate/a2774-00.opn.html
“Subpoenaing John Does”
“Anonymous Posters Complicate Discovery”
Case Study
Cramer, et al. v. Consolidated Freightways Inc., et al. (9th Cir. 2001).
UK Speed Law Article 1
UK Speed Law Article 2
Apply Princples of earlier classes on litigating privacy and privacy torts to the following situation:
Client is a female in her late 30s. On June 4, 2002, she walked on Michigan Avenue heading for the subway station. As she walked, she noticed a gentleman following her very closely. After a block or two, she turned around and confronted the gentleman. He turned and started to walk away. She noticed a camera in his bag with the lens pointing straight upward. After yelling at him, other citizens harassed the gentleman and caused him great distress. In the melee, a business card fell out of his pocket. Being a thoughtful individual, client picked the card up and kept it.
Weeks have passed. An anonymous source with a yahoo email address informs our client that she should link to a particular site. She does so. An mpeg file (movie file) starts playing on her screen in which the camera recorded a view up a woman’s skirt. Although disturbed, she continues to watch. She then notices a scar on the woman’s thigh. Upon further examination, our client learns that the woman in the film is indeed her. At this point, a fellow employee walks by and observes the movie on the client’s screen. This employee later reports the incident to her supervisor. The next day, our client is reprimanded for violating the company’s Internet Usage policy and suspended for four weeks with no pay.
As if we were a case team, we shall discuss any and all strategies to assisting our client.
Oral Presentations. Be prepared to do your presentation and respond to your peers’ presentations.
NSA Legal Standards for Intelligence Surveillance
http://www.fas.org/irp/nsa/standards.html
U.S. Patent No. 5, 937, 422
U.S. Patent No. 5, 418, 951
Speech Recognition Demonstration
http://www.usc.edu/ext-relations/news_service/real/real_video.html
EPIC Complaint and TRO
http://www.epic.org/privacy/carnivore/complaint.pdf
FBI Carnivore Diagnostic Tool
http://www.fbi.gov/hq/lab/carnivore/carnivore2.htm
Peruse EPIC Carnivore FOIA Documents
http://www.epic.org/privacy/carnivore/foia_documents.html
FBI Congressional Statement
http://www.fbi.gov/congress/congress00/kerr072400.htm
EPIC Comments on Independent Technical Review
http://www.epic.org/privacy/carnivore/review_comments.html
Check Your ISP for Carnivore
http://www.stopcarnivore.org/howtostopit/fpisp.htm
Chris Elliot, “The legality of the interception of electronic communications: A concise survey of the principal legal issues and instruments under international, European and national law” (1999).
Explore http://www.cipherwar.com
Explore http://www.echelonwatch.org/
Week Twelve – The New
Security: Biometrics, Facial Recognition 4/7
Background on Biometrics: “Biometrics and Privacy,” Roger Clarker
http://www.anu.edu.au/people/Roger.Clarke/DV/Biometrics.html
“A Chip ID That’s Only Skin-Deep” Los Angeles Times December 19, 2001.
“Terrorist attacks, new XP OS renewing interest in biometrics”
http://www.idg.net/go.cgi?id=591614
Combating Terrorism with Biometrics: Privacy Policy Implications
http://www.privacyassociation.org/docs/fri-woodward.pdf
Explore http://www.bioprivacy.org/
STUDENT RESOURCE: Look for Biometric Legislation
Recommended Film: Gattaca
PATRIOT Act
House Analysis of PATRIOT Legislation
http://www.epic.org/privacy/terrorism/patriot_sec.pdf
ACLU, USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances: An ACLU Legislative Analysis (2001).November 13, 2001
CDT Analysis of PATRIOT Act
EFF Analysis of Provisions of the PATRIOT Act
Homeland Security Act
http://news.findlaw.com/hdocs/docs/terrorism/hsa2002.pdf
Analyses of Homeland Security Act
Explore http://www.ombwatch.org/article/articleview/943/1/18/
Cyber Security Act
Military Order on Military Tribunals
National Security; Prevention of Acts of Violence and Terrorism, 66 Fed.Reg. 211 55062 (October 31, 2001) (DOJ Rule on Attorney Client Privilege)
“U.S. Will Monitor Calls to Lawyers,” Washington Post November 9, 2001.
Illinois Terrorism Legislation
PATRIOT Act (cont’d)
We will discuss the philosophical implications and proposed alternative solutions to some of the government’s latest responses to terrorism.
Examine international responses to terrorism.
Materials TBA