Privacy   Fall 2016   UNH Law   Prof. Ford

»  Notes and updates

Note: This is the webpage for a class from the past that has ended. Information about current classes is available here.

Final exam: The final exam has been posted here. Graded exams are available for pickup in the Registrar’s office.

Cool privacy-related job opportunity: TechCongress is looking for Congressional Innovation Fellows to work on policymaking related to encryption, health IT, privacy, cyber/data security, and similar issues. Applications are due by September 30, 2016 at 11:59 pm.

ACLU privacy happy hour: The ACLU of New Hampshire will hold a Young Professionals Happy Hour on Wednesday, August 31, from 6:00 to 8:00 pm at True Brew Café. The program will include a discussion of mobile-device privacy and anonymous web browsing using Tor. If you are interested in attending, please RSVP to gibson@nullaclu-nh.org. The invitation is here.

»  Overview

Privacy is the study of society’s efforts to draw boundaries between different contexts in which information flows. In the last few decades, privacy law has gone from being a minor issue largely confined to a few specific industries to one of the most important and pressing issues for businesses, consumers, and government officials of all kinds. This course will survey legal regimes governing the collection, use, and dissemination of information. Topics of discussion will include information dissemination and the First Amendment, associational privacy, the privacy torts, consumer privacy on the internet, the role of the Federal Trade Commission, medical privacy, government surveillance and the Fourth Amendment, privacy and national security, and international privacy regimes.

»  Class meetings and office hours

We will meet on Tuesdays from 3:10 to 5:10 p.m. in room 202. On a few occasions, I may need to cancel class because of a conflict; we will make up those sessions at times announced in class and posted on this site. We will not meet on Election Day.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 281) and chat or just grab some candy. I will be in the office most days (afternoons are more likely than mornings). To set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu.

»  Materials

The casebook is Solove & Schwartz, Information Privacy Law (5th ed. 2014). List price for the book is $226. On Amazon, the book costs about $196 (new) or $89 (used), or it can be rented for about $27. Professor Solove also maintains a website for the casebook, informationprivacylaw.com, which contains links to privacy statutes, organizations, and various other resources.

If you exercise the option to write a substantial paper (see below), you’re also going to want a copy of Eugene Volokh’s book Academic Legal Writing. (It doesn’t really matter which edition, though later is probably at least a little better.)

In addition to the casebook, I will post links to other readings and assignments on this site. I will not be using TWEN or Blackboard.

»  Attendance, participation, and evaluation

Regular attendance is required, and under the standard ABA rules, you may be barred from taking the examination and receiving credit for the course if you miss more than 20% of class sessions. Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct. An occasional absence is fine, but please let me know in advance.

Because this is a class centered on discussion, it is critical that you come to class prepared, having read and considered the assigned materials.

Your course grade will be based on three components:

• 20% — class participation and discussion;
• 20% — four short discussion papers; and
• 60% — a take-home final exam or substantial research paper.

For each of the four short discussion papers, you should read the assignment for the week and write a 2-to-4-page paper on something related to that week’s subject. These papers should not just respond to or regurgitate the readings; they should bring something new to the table — an example, case study, new idea, or proposal that goes beyond what’s covered in the readings. This will likely require doing some Google research or outside reading in addition to the week’s assignment. This also means that your paper will likely be far narrower than the week’s reading; that’s fine, since the goal is to spark interesting discussion. You can choose any four weeks (after the first week) to do these papers, and they are due the Monday evening before class at 6:00 p.m. by email to me at roger.ford@nulllaw.unh.edu. Please use the email subject line “Privacy short paper” and include your paper as a PDF attachment with the filename “[your last name] week [week number].pdf.”

The final exam will be open to any materials; I will say more about its contents as it approaches. If you choose, you have the option to instead write a substantial research paper of 10,000 words or more. This option is only available to you if I approve your topic by the end of October. If you are interested in exercising this option, let me know well in advance of the October deadline so we can discuss what would make for a suitable paper topic.

»  Competencies

In 2013, the faculty approved a list of competencies that are important to the practice of law. For a list of those competencies, indicating which will be covered in this class, click here.

»  Schedule and reading assignments

I will fill in the following list of reading assignments over the course of the semester; the list of subjects to be covered is tentative and subject to change depending on late-breaking developments and the interests of the class. We will cover each assignment during one class session. “S&S” refers to the Solove & Schwartz casebook.

1. The functions of privacy and origins of privacy law.
   • This syllabus.
   • S&S 10–29, 46–57, 65–71, 83–88.
   • Amanda Hess, Slate, The Shaming of Izzy Laxamana.
   • Andrew Watts, Backchannel, A Teenager’s View on Social Media.
2. News gathering and the public interest in information.
   • S&S 91–100, 111–125, 153–167.
   • Owen Thomas, Gawker, Peter Thiel is Totally Gay, People.
   • A.J. Daulerio, Gawker, Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.
   • John Cook, Gawker, A Judge Told Us to Take Down Our Hulk Hogan Sex Tape Post. We Won’t.
   • Ryan Mac and Matt Drange, Forbes, This Silicon Valley Billionaire Has Been Secretly Funding Hulk Hogan’s Lawsuits Against Gawker.
3. False information, emotional distress, appropriation, and anonymity.
   • S&S 178–192, 199–201, 204–218, 236–241.
   • Katie Moore & David Hammer, WWL TV, Terrebonne Sheriff Raids House to Expose ‘ExposeDAT’ Anti-Corruption Blog.
   • Terrebonne Parish Sheriff’s Office v. Anderson, No. 2016 KW 1093 (La. Ct. App. Aug. 25, 2016).
4. Law enforcement and government surveillance.
   • Skim S&S 258–267 for background.
   • S&S 267–275; 278–282; 288–299; 306–312; 318–336.
   • Monte Reel, Bloomberg Businessweek, Secret Cameras Record Baltimore’s Every Move From Above.
   • Sam Biddle, The Intercept, Long-Secret Stingray Manuals Detail How Police Can Spy on Phones.
   • Probable cause affidavit, Sigfredo Garcia (May 25, 2016).
5. Privacy versus national security.
   • S&S 414–424; 429–445; 449–451; 460–479.
   • New York Times, Edward Snowden, Whistle-Blower.
   • Washington Post, No Pardon for Edward Snowden.
   • Glenn Greenwald, The Intercept, WashPost Makes History: First Paper to Call for Prosecution of Its Own Source (After Accepting Pulitzer).
6. Health privacy and HIPAA.
   • S&S 482–505; 516–543.
   • U.S. Department of Health and Human Services Office for Civil Rights, Privacy, Security, and Electronic Health Records.
   • athenahealth, Inc., Whitepaper: A Summary of the HITECH Act.
7. Intimate privacy and individual autonomy.
   • S&S 544–569.
8. Genetic privacy; associational and group privacy.
   • S&S 585–604.
   • Ford & Price, Privacy and Accountability in Black-Box Medicine, pages 5–14.
   • S&S 336–349.
   • NAACP v. Alabama (1958).
9. Consumer and financial privacy.
   • S&S 741–748; 758–766; 790–811.
   • Ryan Calo, Digital Market Manipulation, pages 1000–1018.
10. The Federal Trade Commission as privacy guardian.
    • S&S 848–877.
    • FTC v. Frostwire complaint (2011).
    • FTC v. Wyndham Worldwide (2015) — Parts I and III.
    • Solove & Hartzog, The FTC and the New Common Law of Privacy — this is an egregiously long article; just skim through the introduction and Part I.
11. Data breaches and identity theft.
    • S&S 766–776; 949–976; 984–990.
    • pwc, Cyber crisis management: A bold approach to a bold and shadowy nemesis. (skim)
    • Brian Krebs, Krebs on Security, Cards Stolen in Target Breach Flood Underground Markets.
    • Brian Krebs, Krebs on Security, Online Cheating Site AshleyMadison Hacked.
    • Brian Krebs, Krebs on Security, Extortionists Target Ashley Madison Users.
    • Brian Krebs, Krebs on Security, Are Credit Monitoring Services Worth It?.
12. International privacy and the European privacy regime.
    • S&S 1096–1121; 1133–1142; 1148–1156.
    • Natalia Drozdiak & Sam Schechner, Wall Street Journal, EU Court Says Data-Transfer Pact With U.S. Violates Privacy.
      • Note: If you do not have access to the WSJ website, just search for the headline on Google. If you click through the search results it should show you the full story.
    • Courtney M. Bowman, Proskauer, US-EU Safe Harbor Invalidated: What Now?
    • Allen & Overy, The EU General Data Protection Regulation.
13. The internet, robots, drones, and future privacy; protecting yourself.
    • Andy Greenberg, Wired, Hackers Remotely Kill a Jeep on the Highway — With Me in It.
    • David Kravets, Wired, School District Halts Webcam Surveillance.
    • David Kravets, Wired, School District Pays $610,000 to Settle Webcam Spying Lawsuits.
    • Ryan Calo, Robots and Privacy.
    • Margot Kaminski, Testimony before the House Committee on Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade on the Disruptor Series: The Fast-Evolving Uses and Economic Impacts of Drones.
    • FTC Staff Report, Internet of Things: Privacy & Security in a Connected World (just read the executive summary).
    • In the past few weeks, several writers have published guides to protecting your privacy. We will cover a bunch of this in class, but for reference here are some links:
      • Electronic Frontier Foundation, Surveillance Self-Defense.
      • James Grimmelmann, The Laboratorium (2d ser.), Be Prepared: Protecting Your Digital Privacy Before Trump Takes Office.
      • Andrew Cunningham, Ars Technica, A beginner’s guide to beefing up your privacy and security online.
      • Micah Lee, The Intercept, Surveillance Self-Defense Against the Trump Administration.
      • Candace Williams, Medium, A 70-Day Web Security Action Plan for Artists and Activists Under Siege.
      • rglaters0, /r/personalfinance, Ever wanted to do a financial background check on yourself? Here’s how you do it.

© 2014–2016 by Roger Allan Ford