Technology, privacy, control, and surveillance

Submission Number:

9943 

Moderator:

Nicholas Frayn  
Peking University School of Transnational Law

Session Organizer:

Greg Shaffer  
University of California Irvine School of Law

Description:

Papers address digital communications surveillance; privacy for social media; online companies and social life; digital whistleblowing; body worn cameras and police exhaustion; revenge porn regulation

Primary Keyword:

Technology, Technological Innovation, Robot Law

Secondary Keyword:

Regulation, Reform, and Governance

Papers

Heart Monitors: Body-worn cameras and police emotional exhaustion

Police departments in the United States are rapidly adopting body-worn cameras (BWCs). To date, no study has investigated the effects of BWCs on police officers themselves. Police officers use a variety of emotional management strategies to navigate the often-conflicting demands found in law enforcement, and experience correspondingly higher levels of burnout, specifically emotional exhaustion, than other professions. We hypothesize the intensive surveillance of BWCs will manifest in how police officers perceive the organizational support of their departments, and will increase emotional exhaustion. We test these hypotheses using data from patrol officers (n=271). Using structural equation modeling, we find BWCs increase police officer emotional exhaustion, and this effect is statistically significant. We also find BWCs decrease officers' perceived organizational support, which mediates the relationship between BWCs and emotional exhaustion. Our study is the first to locate police officers, emotional exhaustion and perceived organizational support in the BWC literature.

Presenter

Ian Adams  
University of Utah

Non-Presenting Co-Author

Sharon Mastracci  
University of Utah

Beyond NTD: distributive justice and strict intermediaries liability for unauthorised dissemination of nude images (‘revenge porn’).

This paper is part of a bigger project funded by a Leverhulme Fellowship (‘Privacy law, gender justice and end-users’ liability: “revenge porn” and beyond’). It advances the argument – beyond critiques of S230 CDA and of s5 of Defamation Act 2013 (UK) – that that ECD’s NTD (notice and takedown) regime, does not go far enough and that, at least in the context of UDONI (unauthorized dissemination of nude images), intermediaries should be strictly liable (in terms of civil liability) for the damage from UDONI. This conclusion is based on a distributive justice framework taking into account the following: • Developments in content/image recognition technologies • The nature of the harm from UDOMI as irreparable • The priority of preventing rights violation over repairing it • The profit motive of intermediaries • Their better ability to spread the loss • The gendered nature of perpetration and harm in UDONI • The right to effective remedy • Causation and attribution difficulties in liability under NTD The paper will examine the proper scope of intermediary liability for unauthorized dissemination of nude images (‘UDONI’ ) based on first principles of the ability to prevent (or control) the wrong and the ensuing harm, the extent to which the intermediary benefits from the tort, the nature of the harm, and the ability of the relative parties to bear the harm or the costs of its prevention.

Presenter

Tsachi Keren-Paz  
Keele University, school of Law

How Private is “Private”? The ECPA in the Era of Social Media and the Third-Party Doctrine

This paper addresses legislative proposals to increase privacy protections for social media users in the United States. Congressional action is required as the U.S. Supreme Court's third-party doctrine curtails constitutional protections for privacy in this sphere. First, the Court has held there is no reasonable expectation of privacy for information voluntarily conveyed to the employees of a private entity during the ordinary course of business. The Court then extended this doctrine to information that was merely exposed to the private entity's equipment, which covers electronic communications. Congress responded with the Electronic Communications Privacy Act of 1986 (ECPA), in particular Title II known as the Stored Communications Act (SCA). However, recent courts have struggled with this outdated legislation as it was written in the pre-Internet era, when Congress did not anticipate modern multi-faceted social media platforms and data storage capabilities. Until the U.S. Supreme Court revisits its jurisprudence, Congress should expand the ECPA's probable cause and warrant requirements to reflect modern technological realities. As civil remedies have proven ineffective, the exclusionary rule should apply as a deterrent for government violations. Finally, any new language must be neutral enough to allow for an era of rapid technological advances and lumbering federal responses.

Presenter

Christopher Lin  
Temple University Beasley School of Law

IF WORDS COULD KILL - AND MAYBE THEY CAN

When can words be sufficient to hold someone criminally responsible for the death of another? For more than a century judges and juries have convicted people of homicide for physical acts – or failures to act – that caused another person's death. One's physical presence accompanied by his physical act(s) is the basis for demonstrating the commission prong for a killing. The intentionality or recklessness of one's conduct can determine the seriousness of the charge, but proof that the defendant caused the death of another is necessary for any conviction. Suicide is defined as the taking of one's own life voluntarily and intentionally. Some states make it a crime to encourage or assist a suicide - some do not. In those states that do not make assisted suicide a crime how can it be possible to convict someone of manslaughter when their conduct did not extend beyond words? In 2017, a seventeen year old girl was convicted of involuntary manslaughter for the text messages she sent to her boyfriend encouraging him to kill himself. See Commonwealth v. Michelle Carter. Mr. Roy took his own life while Ms. Carter was miles away, however Ms. Carter was held criminally responsible for his death. Digital communication may be an evolving norm. Texting may be a replacement for face to face communication, especially among younger generations. Nonetheless, the law has yet to declare that instantaneous messaging is synonymous with physical presence. A 'virtual presence' and a phy

Presenter

Hillary Farber  
University of Massachusetts School of Law

Digital Whistleblowing and conflicts with data protection law in Europe

Whistleblowing is not a new phenomenon. The term was already used in the 70s to describe the revealing of major scandals in the United states, as the famous Pentagon Papers disclosed by Daniel Ellsberg. Whilst it took Ellsberg a considerable amount of time copying files about the Vietnam War, whistleblowers in the digital age like Manning or Snowden can collect, transmit and store mega leaks in minutes. These questionable surveillance activities of modern secret services have been broadly discussed in different sciences. At the same time, another more inconspicuous question arises which has yet to be researched in depth: potential conflicts between data protection law and whistleblowing. Is the data of the affected by disclosures individuals sufficiently protected? When do whistleblowers infringe upon data protection rules and in which cases might they be covered by the public interest test? What are the legal obligations towards companies building internal whistleblowing structures? Is the whistleblower himself protected by data protection and can he act anonymously? How can the conflict between data protection and freedom of expression be solved? These questions come to the forefront as Member States are expected to implement the latest EU data Regulation by May 2018. In this vein, the disclosure of private tax data will also be examined herein, which has occurred in several Member States in the last years and which also relates to the aforementioned Regulation.

Presenter

Dimitrios Kafteranis  
University of Luxembourg

Anticipating the Future, Assembling the Past: Constricting Constitutional Rights, Expanding Surveillance, and "Preventing" Terrorism in US v Mohamud

Although interest in the exploitation of digital communications technologies for surveillance purposes has garnered significant interest in law and society studies over the past decade, few have undertaken systematic, empirical research to show exactly how specific technologies lead to new and distinct social outcomes. Expanding on recent research by Brayne (2017), this paper asks how contemporary digital communications technologies are used in conjunction with specific weakening privacy rights to procure guilty verdicts--and plea deals--from those targeted in the so-called Global War on Terror. The proposed paper uses over 4,000 pages of FOIA-requested trial transcripts from US v Mohamud, a 2010 domestic terrorism case involving extreme preventative policing tactics and the first case to litigate on Sec 702 of FISA. Additionally, it draws from publicly available legal documents of similar cases (N=261), as well as in-depth interviews with current and former defense attorneys, prosecutors, FBI agents, and police officers with direct knowledge of Mohamud or similar cases, to argue that expanded access to digital communications, sanctioned by shifting privacy laws, enables the government to anticipate highly speculative future "threats," despite a surprising lack of criminal intent prior to FBI involvement. This extreme action is both made possible by and justified through the construction of detailed narratives of criminal wrongdoing, or what I term "criminal biographies.

Presenter

Anya Degenshein  
Northwestern University

Online Companies as Providers of Democratic Life – Bridging the Democratic Gap

Entities such as Google, Facebook or Twitter, referred to in turn as platforms, nodes, infrastructure, gatekeepers, intermediaries, are increasingly engaging, by virtue of the nature of the services they offer and their ability to control and oversee online activities, in balancing, interpreting and allocating rights or financial rewards, that is in performing functions of a public nature or that would otherwise be carried out by public bodies. Further, as misleading news and the proliferation of online hate speech are demonstrating, online gatekeepers are shaping what a democratic environment looks like, without real input from individuals or governments. Are these companies giving rise to new forms of transnational sovereignty? Are they quasi states, institutions or utilities? What tools must be used the bridge the democratic gap that exists between individuals and their online democratic life? The law in this area is unsettled, and the demand for solutions reflecting the evolving needs of individuals as citizens rather than consumers is pressing. The goals of my paper are: (1) to articulate some terminology disputes around the nature and role of online gatekeepers; (2) to explain why and how current institutional settings are unequipped to bridge the widening democratic gap between democratic life and individual citizens; (3) to devise a methodology drawn from political theory and public law; and (4) to propose solutions for addressing some current conundrums.

Presenter

Elettra Bietti  
Harvard Law School