Georgetown University Law Center
Spring 2008
Prof. Marc Rotenberg
LAWJ-342-09
revised April 8, 2008
This course examines "information privacy," an individual's right to control his or her personal information held by others. The aim of the course is to understand how courts and the Congress seek to protect information privacy as new technologies and new institutional practices emerge. The course traces the origins of the right to information privacy in American law, through Constitutional law, tort law, and modern statutory law. Case studies of landmark privacy legislation illustrate how expectations of privacy are translated into legal frameworks. The course looks at recent controversies involving workplace monitoring, direct marketing, and the use (and misuse) of the Social Security number. The course also considers the impact of the European privacy directive, the growth of the Internet, the recommendations of the 9-11 Commission (and the response of Congress), and the availability of cryptography on the future of privacy law in the United States.
Course clusters: Constitutional law and government. Public interest law. Credits: Information Privacy Law is a three credit course.
Welcome
This is the preliminary syllabus for the spring 2008 version of Information Privacy Law. For 2008, we will be looking at several emerging privacy issues, including privacy in the context of merger review and new techniques for identification. Please note that the Supreme Court argument in Crawford v. Marion County will take place on January 9. This is an important case on voter identification that we will discuss later in the semester. Also, Peter Hustinx, the European Data Protection Supervisor, will give a guest lecture on January 29.
Key dates:
• Classes meet Tuesday evenings. No class February 19 or March 4.
• Papers for graduating students are due April 28, 2008.
• For non-graduating students, papers will be due May 13, 2008.
• The exam date is May 6, 2008.
Marc Rotenberg.
Two books are required. Daniel J. Solove, Marc Rotenberg, and Paul Schwartz Information Privacy Law (Aspen 2006), and George Orwell, 1984 (with an afterword by Erich Fromm). One book is recommended but not required. Bruce Schneier, Beyond Fear, Thinking Sensibly About Security in an Uncertain World
You may also enjoy reading The Right to Privacy by Ellen Alderman and Caroline Kennedy (Knopf 1995), The Unwanted Gaze by Jeffrey Rosen (Random House 2000), Technology and Privacy: The New Landscape, edited by Philip E. Agre and Marc Rotenberg (MIT Press 1997), Ben Franklin's Web Site: Privacy and Curiosity from Plymouth Rock to the Internet (Privacy Journal 2000) by Robert Ellis Smith, and The Digital Person (NYU Press 2000) by Daniel J. Solove.The Law of Information Privacy meets Tuesday evenings from 5:45 to 7:45 in Hotung 1000. The first class meets on Tuesday, January 15, 2008. The last class is April 22, 2008. The exam date has not been set. There is no class on Tuesday, February 19 (Faculty retreat) or Tuesday, March 4 (Spring break). The Law School generally follows the federal government policy when there is snow. If in doubt, check the class cancellation line at 202/662-9446.
Marc Rotenberg
(202) 483-1140 x106
rotenberg@epic.org
Course information: http://www.epic.org/misc/gulc/
Grading for this course is as follows
Class participation 20%
Final paper or exam 80%
The course requires taking the examination or submission of a Research Paper for credit by May 13. The Georgetown Bulletin states that for a Research Paper that "the aggregate minimum amount of written work should be approximately 25 pages. Outlines and drafts are not required."
Several students in Information Privacy Law have produced papers that were eventually published in major journals. See, e.g., Alan R. Kabat, "Scarlet Letter Sex Offender Databases and Community Notification: Sacrificing Personal Privacy for a Symbol's Sake," 35 American Criminal Law Review 333-370 (Winter 1998); Amy Monihan, "Deconstructing Information Walls: the Impact of the European Data Directive on U.S. Businesses," 29 Law and Policy in International Business 275- (January 1998).
The examination is open book. There are four questions. You will be asked to answer three. For the paper, all non-graduating students will have until May 13. All papers should be submitted directly to the Office of the Registrar.
Grading will be on the basis of clarity of analysis, persuasiveness of argument, originality of thought, and familiarity with course materials. Class participation is also important. If for some reason you are unable to attend a class, please let me know in advance.
SCHEDULE (Please note: assignments and page numbers subject to change)
I. INTRODUCTION (Tuesday, January 15, 2008)
Topics
• Why Privacy Law Matters: Voter ID
• Course administration
• Information Privacy Law: Origins and Roots
• Fair Information Practices
• Brandeis Warren article
• Philosophical Perspectives
Assignment
• Information Privacy Law 9-30, 33-38, 56-64
II. PRIVACY AND THE MEDIA (January 22, 2008)
Topics
• Recognition of the Privacy Torts
• Intrusion Upon Seclusion
• Paparazzi and Video Voyeurism
• Disclosure of Illegally Obtained Information
• Defamation and the Internet
• Appropriation
Assignment
• Information Privacy Law 76, 94-101, 103-104, 131-43, 152-58, 159-69, 188-206
III. INTERNATIONAL PRIVACY I (January 29, 2008)
Topics
• Article 8 of the European Convention of Human Rights
• OECD Privacy Guidelines
• EU Data Directive
Assignment
• Information Privacy Law 871-88, 900-05, 915-22
• Privacy Law Sourcebook "OECD Privacy Guidelines"
• Privacy Law Sourcebook "EU Data Directive"
Guest Speaker
Peter Hustinx,
European Data Protection Supervisor
IV. HEALTH AND GENETIC PRIVACY (February 5, 2008)
Topics
• Privacy in Medical Care
• Medical Testing
• Privilege
• DNA Databases
Assignment
• Information Privacy Law 350-56, 377-85, 390-94, 394-401, 441-50
V. PRIVACY AND THE FOURTH AMENDMENT (February 12, 2008)
Topics
• Fourth Amendment and Technology
• Electronic Surveillance
• Reasonable Expectation of Privacy
Assignment
• Information Privacy Law 207-21, 223-29, 232-45, 248-52, 256-62
VI. PRIVACY BY STATUTE I: LAW ENFORCEMENT (February 26, 2008)
Topics
• Federal Wiretap Law
• "ECPA" and "FISA"
• The Patriot Act
• National Security Letters
Assignment
• Information Privacy Law 263-72, 276-77, 277-82, 285-88, 288-92, 294-300, 300-07, 312-14, 338-43
• Privacy Law Sourcebook "Electronic Communications Privacy Act"
• Privacy Law Sourcebook "Foreign Intelligence Surveillance Act"
VII. PRIVACY BY STATUTE II: PUBLIC SECTOR RECORD SYSTEMS (March 11, 2008)
Topics
• Privacy Act
• FOIA
• Privacy Policies
• Role of FTC
Assignment
• Information Privacy Law 577-83, 583-94, 600-09, 612-15, 618-21
• Privacy Law Sourcebook "Privacy Act"
• Privacy Law Sourcebook "Freedom of Information Act"
Guest Speaker
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security
VIII. PRIVACY BY STATUTE III: PRIVATE SECTOR RECORD SYSTEMS (March 18, 2008)
Topics
• Third Party Records
• Internet Privacy
• First Amendment concerns
Assignment
• Information Privacy Law 623-29, 642-43, 646-49, 655-57, 660-68, 669-73
• Privacy Law Sourcebook "Video Privacy Protection Act"
• Privacy Law Sourcebook "Cable Communications Policy Act"
IX. PRIVACY OF ASSOCIATION AND IDENTITY (March 25, 2008)
Topics
• Privacy of Group Association
• Anonymous Speech
• Identification
• Copyright Enforcement
• WHOIS Directory
Assignment
• Information Privacy Law 470-80, 490-94, 498-500, 503-04, 504-18
X. INTERNATIONAL PRIVACY II (April 1, 2008)
Topics
• International Data Transfers
• Global Privacy Standards
• Passenger Profiling Redux
Assignment
• Information Privacy Law 929-63
Guest Speaker
Harriet Pearson,
Chief Privacy Officer, IBM
XI. PRIVACY AND PLACE (April 8, 2008)
Topics
• Privacy at Home
• Privacy at School
• Privacy at Work
Assignment
• Information Privacy Law 765-801
XII. RFID TECHNOLOGY AND PRIVACY (April 15, 2008)
Topics
Assignment
XIII. PRIVACY AND THE SUPREME COURT (April 22, 2008)
Guest Speaker
Professor Orin Kerr
Topics
Errors in Computer Databases - Herring v. U.S., No. 07-513
Assignment
May 13, 2008 - PAPER DUE
EXAMS