The Sieve of Overspecialization

Using Ulrich Beck‟s focus on experts as the source of unintended risks in society, this paper speculates on the consequences of linking the concepts of privacy and security too closely. The argument is made that this constructed linkage attracts separate and fairly narrow fields of technical expertise that focus on a very limited definition of the problem and hence the potential solutions derived. It is argued that this expertise focuses on small “p” privacy (data and rules about data) and that a failure to address privacy substantively understates the potential costs of security failures and that, paradoxically, a serious engagement with concept of the privacy may lead to more effective attention on data and its security

RFID/INTERNET OF THINGS SYSTEMS ON THE BOUNDARY BETWEEN PUBLIC AND PRIVATE SECTORS: AN ANT STUDY OF MULTIPLICITY

Radio Frequency Identification (RFID) systems are becoming increasingly common in applications that are shared between the public and private sectors. These systems facilitate supply chain, traceability and sensor functions, not to mention the application of RFID technology in enabling the Internet of Things. Despite their increasing ubiquity, the management of public-private RFID systems is under-researched and little understood. This research addresses a gap in literature by using Actor-Network Theory (ANT) to uncover the public-private RFID network. It was found that the public-private sector relationship is initially characterised by stereotypical views which diminish as sectors work together. Further, the public sector in this context was seen to be a multiplicity with four different performances, public sector as a member of the public-private partnership; as legislator; as enforcer and as funding provider. This multiplicity is shown to lead to confusion within public-private partnerships as members of the partnership are not always clear about which performance of the public sector they are enacting, or interacting with. ANT provided a sound basis to explore such a complex networked system, its inclusion of technology within the construction of the social offers a way of understanding complexity within internet of things based applications

CARPENTER V. UNITED STATES AND THE SEARCH FOR THE FOURTH AMENDMENT

Every Fourth Amendment analysis begins with the threshold inquiry of whether there has been a search or seizure. But answering what constitutes a “search” for the purposes of the Amendment has shown to be a difficult task. This is especially so in a world that is constantly changing by way of technology. Since the Amendment was written, both the capabilities of law enforcement as well as the private and commercial use of information have drastically transformed. For that reason, the doctrine has evolved substantially. Search criterion has shifted from physical trespass to reasonable expectations of privacy. Further, no such expectation exists in information that one knowingly reveals to a third party. But, in the Digital Age, these principles suffer from lack of clarity. Carpenter v. United States was the most recent confluence of the Fourth Amendment and technology, wherein the Supreme Court held that a search occurs when the Government obtains a user’s cell site location information. This note analyzes that case, as well as historic and contemporary search doctrine. Ultimately, this Note argues that search questions—even those implicating technology—are best answered by applying the Amendment as written

Outsourcing, Data Insourcing, and the Irrelevant Constitution

Long before revelations of the National Security Agency\u27s data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government\u27s ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced into government coffers with no constitutional accountability-much like governmental powers are being outsourced to private contractors without constitutional restraint. These phenomena reveal a troubling trend: the diminishment of the Constitution\u27s relevance when the government works in tandem with third parties. Outmoded Fourth Amendment doctrine offers no pathway around this problem. Nor has legislation kept apace with technological advancements to forestall abuses before they occur. Moreover, the primary theories for challenging the private exercise of public power-the private delegation and state action doctrines-rarely persuade modern courts. Rather than focusing on the privacy aspects of big data, this Article proceeds from the standpoint of the structural Constitution, and reframes existing doctrines for rendering the government constitutionally accountable for actions taken through a third party, on the theory that exclusive reliance on the political branches for the protection of individual privacy rights in the age of big data is insufficient

Enhancing horizontal accountability: the key to addressing the conflict of interest loopholes in public procurement in Nigeria

This thesis argues that the current dual accountability model in Nigerian public procurement model is one with vertical accountability and horizontal accountability which is weakened by an inefficient horizontal accountability system, and in order to unleash the true benefits of a dual accountability system there needs to be an enhancement of horizontal accountability. It argues that the key to this enhancement lies in improved access to information and enhanced legal empowerment of certain actors in the public procurement process. This thesis tackles one of the most critical sectors in the Nigeria public sector – public procurement, specifically because of the effect that this sector has on the general development of a country. The thesis argues that in order to reduce corruption in the sector, the focus needs to be placed on ensuring accountability in the stage before corruption – conflict of interest. It puts forward the position that in order to ensure accountability at the conflict of interest stage, horizontal accountability can be extremely beneficial, and therefore the thesis creates a theoretical model - the Transparency and Accountability Matrix (TAM) to determine the level of horizontal accountability within certain interactions in the Nigerian public procurement process. Using the TAM as a baseline measurement for horizontal accountability, solutions are proffered on how to enhance the efficacy of horizontal accountability and this is applied to specific conflict of interest scenarios within the Nigerian public procurement process. The key contributions of this thesis are the creation of the TAM – a theory backed model as a horizontal accountability measurement tool; and a very thorough analysis on the accountability framework of the Nigerian public procurement process with a focus on the surrounding access to information legislations, which has been a hitherto unexplored gap in the research on Nigerian public procurement

The Right to Data Privacy: Revisiting Warren & Brandeis

In their famous 1890 article The Right to Privacy, Samuel Warren and Louis Brandeis found privacy as an implicit right within existing law. Regarded as perhaps the most influential legal essay of all time, it offers concepts that ring as true today as they did in 1890. In defining privacy as an important legal principle implicit in the law, they focused on information privacy, such as public disclosure of personal information, rather than decisional privacy. Analyzing the 1890 article is an ideal starting point to assess the origins of privacy law and to understand privacy issues from a simpler time in terms of law and technology. Its concepts thus provide an easily understandable frame of reference before diving into more challenging modern issues and assessing a path forward. Accordingly, this article compares each key principle from 1890 and explores privacy issues that remain similar versus privacy issues that seem new based on particular advances in technology. The key similarity between 1890 and today is that problems of information dissemination present similar issues, albeit on a larger scale. Some key differences between 1890 and today, however, are that computer technologies now allow for massive data collection, massive data retention and increasingly aggressive data analysis that can be used to abuse privacy even with ostensibly public data. Warren and Brandeis taught us that new technologies continually present new privacy issues; so as new technologies are evolving today, thought must still be given to how the law might flexibly adapt to new and unforeseen changes in tech. Their article exposed that various U.S. laws were insufficient in 1890 to broadly protect information privacy, causing Warren and Brandeis to imply a broad right. Today, the same problem persists: laws within the U.S. are inadequate to address privacy harms caused by continually evolving technologies. The U.S. still has no broad express privacy law, and a path forward might contemplate making express what Warren and Brandeis had to imply in order to address new privacy harms. I propose two key ideas. First, the law needs to more clearly distinguish decisional privacy from information privacy. Decisional privacy is really not a privacy interest at all and is instead a personal liberty interest separate from information privacy. Second, when contemplating legal protection for information privacy, perhaps it’s time to consider the arduous and improbable task of enacting a constitutional amendment guaranteeing broad and general protection against information privacy abuse from both government and private actors. While difficult to enact, a broad express federal right could provide significant advantages, such as (1) establish a baseline right from which states and Congress could add consistent legislation; (2) enable courts to restrict clear instances of privacy abuse without waiting for Congress to act, which seems especially helpful given the expected proliferation of artificial intelligence (“AI”) and new and unforeseen privacy harms; (3) increase harmonization with the European Union (“E.U.”) and potentially other jurisdictions; (4) and finally, avoid the problem of originalist or strict constructionist judges refusing to infer or imply a constitutional information privacy right in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), decision. Thus, a flexible and general broad right of federal protection from information privacy abuse might provide an optimal, flexible baseline for courts and regulators to quickly restrict new privacy abuses while allowing time for the states and Congress to enact further detailed legislation