Privacy   Fall 2017   UNH Law   Prof. Ford

»  Updates

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

Machine-learning example: Here is an incredible example of the power of machine learning. As one tweet put it, the biggest casualty of AI may not be jobs, but the eradication of trust in anything you see or hear.

Final exam: The final exam has been posted here. It is due at noon on Thursday, December 14, 2017. Good luck!

No class on November 14: Under the UNH Law calendar, Tuesday, November 14 has a Friday schedule, so we won’t meet on that day. See you all on Tuesday, November 21.

Schedule update: We will not meet on Tuesday, October 31. We will hold a make-up class on Thursday, November 2, at the normal class time, in a room to be announced room 102. Short papers for that week’s class may be turned in before Wednesday, November 1 at 6:00 p.m.

»  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; if that happens, we’ll make up those sessions at times announced in class and posted on this site.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 281 210) and chat or just grab some candy. This semester, I should be in the office most Monday, Tuesday, and Wednesday afternoons, and some Thursdays; if you’d like 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, as of this writing, the book costs about $198 (new) or $116 (used), or it can be rented for about $80. 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 Canvas or a similar system.

»  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. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion.

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- or 3-page paper on something related to that week’s subject. These papers do not need to be formal or include a bunch of citations and footnotes. The goal is not to just respond to or regurgitate the readings; it’s to 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.”

For the final exam, I’m going to try something new this year. The exam will be due on Thursday, December 14, at noon, and will be distributed approximately one month in advance. The exam will be open to any materials and also open to original research; indeed, it will likely require original research. You can also discuss the exam with each other or anyone else; the only rule is that your exam responses must be written individually by you. I will say more about the substantive content and format of the exam as it approaches.

If you choose, you have the option to write a substantial research paper of 10,000 words or more — along the lines of a Law Review or IDEA note — in lieu of the exam. This option is only available to you if I approve your topic by the end of October. This will require some work: I will want to see a thesis, abstract, and/or short outline, and discuss it with you, before approving your topic. 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 good paper.

»  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 89–100, 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. (Note: After the litigation described in these links, Gawker removed this post; I have linked to a random mirror I found.)
   • 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. Privacy-torts grab bag: 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; genetic privacy.
   • S&S 544–569; 585–604.
   • Ford & Price, Privacy and Accountability in Black-Box Medicine, pages 4–15.
8. Associational and group privacy; privacy in the workplace.
   • S&S 336–349.
   • NAACP v. Alabama (1958).
   • Amy Howe, Scotusblog, Argument preview: The justices tackle partisan gerrymandering again.
   • Amy Howe, Scotusblog, Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?
   • S&S 1017–1032, 1043–1059.
   • EEOC’s Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act.
   • L.V. Anderson, Slate, Workplace Wellness Programs Are a Sham.
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. 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.
    • Courtney M. Bowman, Proskauer, US-EU Safe Harbor Invalidated: What Now?
    • Allen & Overy, The EU General Data Protection Regulation.
12. Privacy of government records.
    • S&S 606–646.
    • Mark Fenster, The Implausibility of Secrecy — read the introduction.
    • Margaret B. Kwoka, FOIA, Inc. — read the introduction and glance through Part II.
    • Grace Raih, Muckrock, MuckRock’s guide to protests and FOIA: The day after.
    • JPat Brown, Muckrock, MuckRock’s FOIA redaction hall of shame.
    • JPat Brown, Muckrock, Must-Seethe TV: FCC Complaints — pick a show or two you like and check out the FCC complaints.
13. Data breaches, identity theft, and protecting your own privacy.
    • S&S 766–776; 949–974.
    • Brian Krebs, Krebs on Security, Cards Stolen in Target Breach Flood Underground Markets.
    • Brian Krebs, Krebs on Security, Extortionists Target Ashley Madison Users.
    • Brian Krebs, Krebs on Security, Are Credit Monitoring Services Worth It?.
    • Greg Bensinger & Robert McMillan, New Uber CEO Knew of Hack for Months.
    • Liam Tung, ZDNet, Google: Our hunt for hackers reveals phishing is far deadlier than data breaches.
    • In the past year, mostly prompted by the presidential election, several writers have published guides to protecting your privacy. We will talk about some 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 (archive link).
14. Robots, drones, artificial intelligence, big data, and future privacy. For this final class, we will discuss some emerging and future topics in privacy law. These are all technological developments and social developments that promise or threaten to change the relationship between actors in the information ecosystem. I’ve linked to some readings relating to some of these developments, which you should look over; but please also spend some time thinking about how you think privacy will evolve in the coming years and how the law could or should respond to that evolution. And if you have other developments you think will play a similar or bigger role, read up on those and come ready to convince us.
    • Andy Greenberg, Wired, Hackers Remotely Kill a Jeep on the Highway — With Me in It.
    • Department of Transportation, Federal Automated Vehicles Policy: Accelerating the Next Revolution In Roadway Safety (just read the executive summary).
    • 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, Big Data: A Tool for Inclusion or Exclusion? (just read the executive summary).
    • Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact (just read the introduction and Part I).
    • Finale Doshi-Velez et al., Accountability of AI Under the Law: The Role of Explanation.

© 2014–2017 by Roger Allan Ford