Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Audit-based Compliance Control (AC2) for EHR Systems

Traditionally, medical data is stored and processed using paper-based files. Recently, medical facilities have started to store, access and exchange medical data in digital form. The drivers for this change are mainly demands for cost reduction, and higher quality of health care. The main concerns when dealing with medical data are availability and confidentiality. Unavailability (even temporary) of medical data is expensive. Physicians may not be able to diagnose patients correctly, or they may have to repeat exams, adding to the overall costs of health care. In extreme cases availability of medical data can even be a matter of life or death. On the other hand, confidentiality of medical data is also important. Legislation requires medical facilities to observe the privacy of the patients, and states that patients have a final say on whether or not their medical data can be processed or not. Moreover, if physicians, or their EHR systems, are not trusted by the patients, for instance because of frequent privacy breaches, then patients may refuse to submit (correct) information, complicating the work of the physicians greatly. \ud \ud In traditional data protection systems, confidentiality and availability are conflicting requirements. The more data protection methods are applied to shield data from outsiders the more likely it becomes that authorized persons will not get access to the data in time. Consider for example, a password verification service that is temporarily not available, an access pass that someone forgot to bring, and so on. In this report we discuss a novel approach to data protection, Audit-based Compliance Control (AC2), and we argue that it is particularly suited for application in EHR systems. In AC2, a-priori access control is minimized to the mere authentication of users and objects, and their basic authorizations. More complex security procedures, such as checking user compliance to policies, are performed a-posteriori by using a formal and automated auditing mechanism. To support our claim we discuss legislation concerning the processing of health records, and we formalize a scenario involving medical personnel and a basic EHR system to show how AC2 can be used in practice. \ud \ud This report is based on previous work (Dekker & Etalle 2006) where we assessed the applicability of a-posteriori access control in a health care scenario. A more technically detailed article about AC2 recently appeared in the IJIS journal, where we focussed however on collaborative work environments (Cederquist, Corin, Dekker, Etalle, & Hartog, 2007). In this report we first provide background and related work before explaining the principal components of the AC2 framework. Moreover we model a detailed EHR case study to show its operation in practice. We conclude by discussing how this framework meets current trends in healthcare and by highlighting the main advantages and drawbacks of using an a-posteriori access control mechanism as opposed to more traditional access control mechanisms

Fourth Amendment Fiduciaries

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age. In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement—whether voluntary or compelled—as a Fourth Amendment search. The argument develops in three parts. Part I demonstrates that the Court has already identified two settings—if only implicitly—where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense—normatively, or even semantically—to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question

Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases

This Note offers a comprehensive analysis of the current circuit split regarding how the de minimis doctrine applies to music sampling in copyright infringement cases. Since the Sixth Circuit\u27s 2005 landmark decision in Bridgeport Music Inc. v. Dimension Films, critics, scholars and even judges have dissected the opinion and its bright line rule of “get a license or do not sample.” In May 2016, the Ninth Circuit issued its opinion in VMG Salsoul v. Ciccione. The Ninth Circuit explicitly declined to follow Bridgeport, holding that analyzing a music sampling copyright infringement case requires a substantial similarity analysis, including applying a de minimis analysis. The Ninth Circuit’s decision created a circuit split and an unsettled area of intellectual property law. This Note seeks to promote critical analysis of this contested area of law by exploring the underpinnings of the substantial similarity and de minimis doctrines, as well as the holdings of each case and their arguments. The Note offers three proposals regarding how courts should handle the circuit split, and in doing so creates a distinctive way of looking at the music sampling issue to help the federal judiciary frame the problem in a more expansive way

Developing Digital Competences. Work learn trajectories in Italian School System

The work based learning is the core European dispositions on educational and training issue and a pillar of the Europe 2020 strategy (EUCOM 2009/C119/02). Therefore, the educational system has to increase the quality of standards and learning results in order to response adequately to competence needs and to permit the successful entrance of the youth in the world of work. The SWA is a coherent reaction. Indeed, the current literature lead to reflect on the SWA as a new prospective of school and world of work relationship (Arlotti and Barberis 2015), and as a resolution for the skills mismatch (Caputo and Capecchi 2016; Froy, Giguere, Hofer, 2009; A. Green, Hasluck, Hogarth, Reynolds, 2003). In a context which needs a different school that provides different types of skills, it is desirable that a policy instrument such as the SWA – became mandatory by the reform “La Buona Scuola” (Law 107/2015) – is included in the scientific debate, especially for its potential to contribute to renewal of the school system. Many authors encourage the scientific debate regarding the question to clarify the peculiar characteristics of the SWA model in Italy and to begin effective reflection on its revolutionary impact for the school system. According to Tino and Fideli (2015), the SWA is a process, not only as an experience, a fundamental methodology to promote the knowledge of the world of work and the development of competences (professional and citizenship) thanks to the interconnection between formal-informal learning and creative combination process between theory and practice

Logical fallacies as informational shortcuts

“The original publication is available at www.springerlink.com”. Copyright Springer DOI: 10.1007/s11229-008-9410-yThe paper argues that the two best known formal logical fallacies, namely denying the antecedent (DA) and affirming the consequent (AC) are not just basic and simple errors, which prove human irrationality, but rather informational shortcuts, which may provide a quick and dirty way of extracting useful information from the environment. DA and AC are shown to be degraded versions of Bayes’ theorem, once this is stripped of some of its probabilities. The less the probabilities count, the closer these fallacies become to a reasoning that is not only informationally useful but also logically valid.Peer reviewe

Pleading Patents: Predicting the Outcome of Statutorily Heightening Pleading Standards

The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity in the endeavor of gatekeeping weak lawsuits, without serious adverse impact