Good Intentions Gone Awry: Privacy as Proportionality Under Rule 26(b)(1)

Over the past several years, two legal trends have gained momentum. The first is the effort to make discovery in litigation more proportional, culminating in the 2015 amendment to Rule 26(b)(1) of the Federal Rules of Civil Procedure, which includes proportionality in the definition of what information is discoverable. The second is the movement, both in the United States and abroad, toward the greater recognition of individual privacy interests. Some courts and commentators now seek to merge these two trends by advocating that privacy should be considered a factor in analyzing proportionality under Rule 26(b)(1). This paper takes the position that the movement toward privacy as proportionality is misguided. First, it is unnecessary. The Federal Rules, and specifically Rule 26(c), provide ample protection for privacy interests in litigation through the mechanism of a protective order. Indeed, many cases that purport to encompass privacy within the proportionality scheme have in fact engaged in an analysis indistinguishable from that employed under Rule 26(c). Second, the history of proportionality in the Federal Rules provides no evidence that the drafters considered privacy to be a relevant factor in the analysis. Rather, their concerns related exclusively to the burden that discovery placed on litigation in terms of cost and delay. Third, treating privacy as a proportionality factor has significant negative consequences for the litigation process. From the perspective of the judge, incorporating privacy as a proportionality factor rather than treating it as an independent consideration under Rule 26(c) can lead to a different decision on the same facts. It also makes the decision-making process less transparent by adding to the proportionality analysis a factor that is not comparable to the others in that it cannot be measured in time and money. From the perspective of the litigants, privacy as proportionality poses the risk that a party responding to discovery will not preserve, collect, search, or produce information based on a unilateral determination that to do so would be “disproportionate.” Keeping the privacy analysis separate from proportionality would not undermine the values of either privacy or proportionality. On one hand, privacy would continue to receive protection under Rule 26(c). On the other hand, the proportionality analysis could still account for the economic costs of preserving privacy in the course of litigation

Biometrics and the United Kingdom National Identity Register: Exploring the privacy dilemmas of proportionality and secondary use of biometric information

Despite the obvious importance of privacy concerns in the information age, “privacy” remains a messy concept in the academic literature. Scholars are thus attempting to clarify and systematize the privacy concept. They have proposed two important dimensions of privacy concerns: 1) proportionality, or the adequate, relevant and non-excessive collection of personal data, and 2) secondary usage, or the prohibition of subsequent, unspecified uses of personal information. This paper takes measure of the proportionality and potential secondary uses of biometric data in the proposed United Kingdom (UK) National Identity Register (NIR). It argues that the UK Identity Cards Act 2006 fails to guard against violations of the principles of proportionality and secondary usage of biometric data. After reviewing the modern literature on informational privacy protection, I analyze biometrics and their privacy implications. I then discuss these implications in the context of the UK government’s NIR plans. The analysis yields insights into how biometrics on the proposed NIR interplay with purpose specifications, architectural concerns, knowledge asymmetries and public anxieties. I also explore potential secondary uses of the types of biometric data that could be stored in the NIR. Last, a brief note is offered about the possible means of regulating against privacy infringements

Arab, beduin, drúz és cserkesz települések Izraelben

This doctoral thesis analyzes the balancing and proportionality analyses performed by Swedish legislators over time in the creation of legislation allowing for the interception of communica- tions data and metadata by the Swedish Security Service for intelligence purposes. By examining the concept of proportionality within the field of constitutional law, a framework for performing proportionality tests is identified. This framework is used as a contrast against the actual proportionality analyses performed by legislators in preparatory works, and to analyze three components of the legislators’ policy choices: the legislators’ view of national security, the legislators’ view of privacy; and the effect of technological development on the former two components. These components are analyzed through a study of preparatory works from a historical comparative perspective, allowing for the study of shifts in policy outcomes over time. The study shows that legislators’ views on national security have shifted during the last 50 years. as could be expected the focus has shifted towards a more preventive approach. Following this development however the study further identifies a shift in the legislators’ views on privacy. Whereas the importance of privacy from a societal perspective seemed pivotal in the ’pre-preventive era’ of communications interception, the view in the last 15 years has gradually shifted towards a view of privacy as an almost exclusively individual interest, resulting in a weakened status of the right to privacy against competing national security interests. Finally, the importance of technological developments within this field can hardly be overestimated. The range of permitted forms of communications interceptions has closely followed what has been technologically possible, and economically feasible to intercept. Intelligence gathering has increasingly become a legal sphere of its own, where most forms of metadata can be collected without the involvement of the judiciary, and where evidentiary requirements have been lowered to facilitate the use of interception in preventive intelligence gathering. Overall the thesis concludes that these factors have enabled a different outcome of the legislators’ proportionality analyses, where previous ideals have been supplanted by the preventive paradigm

Celebrity privacy and the development of the judicial concept of proportionality: How English law has balanced the rights to protection and interference

This thesis examines how English law has, and has not, balanced celebrities’ legal expectations of informational and seclusional privacy against the press and media’s rights to inform and publish. Much of the litigation that developed the English laws of privacy has been celebrity-generated by those with the financial resources to seek out and utilize privacy regimes and remedies in ways not immediately available to ordinary members of the public. The media, generally, has had the resources to present the relevant counter-arguments. Privacy protection was initially afforded to celebrities by breach of confidence and copyright. While public interest and “fair dealing” defences developed within English law, there was no underlying or consistent practical element in legislative or judicial thinking to promote a balance between the competing interests of protection and interference. That practical element, the concept of proportionality, developed in the Convention case-law of the ECtHR in Strasbourg during the 1950s. It was not until the Human Rights Act 1998 (HRA) that English legislators and the UK judicial system began to reflect and apply its consequences. Arriving at proportionate results and decisions – particularly in the realms of privacy - requires both the engagement of the rights that are sought to be maintained as well as a careful balancing exercise of these rights both internally and vis-à-vis each other. Because celebrities, with their Article 8 concerns, and the media, with Article 10 arguments, seek for their causes to prevail, the ways in which legislation and litigation now resolves matters is by the “ultimate balancing test” of proportionality. Proportionality is the measure within this thesis that is constant from chapter to chapter, highlighting, respectively, where the application of proportionality and balance might have produced different results as regimes developed historically and where new developments were needed to accommodate its requirements when it was apparently absen

Regulatory Responses to Data Privacy Crises and Their Ongoing Impact on E-Discovery

This note argues that advancements in technology and data analysis have reduced the efficacy of the legal data privacy framework in the United States. Furthermore, foreign law blocking statutes expose litigants and corporations to increased data liability. Indeed, not only do consumers lack adequate legal remedies, but litigants face uncertain legal liability and increased costs. Simply put, updated technology requires updated laws. Better data management protects consumers and data value. A legal framework with clear guidelines for protecting data is needed. Still, data access is integral to litigation, and courts must balance the need for data against the need for data protection and privacy. An overhaul of how courts handle Discovery proportionality standards, and privacy in those standards, is necessary. Clarifying privacy’s role in proportionality and quantifying when and how data should be limited in Discovery, would help accomplish this. It would also bring current Discovery practices and data management more in-line with foreign privacy law, and potentially reduce costs through standardization. Where costs are an issue, applying cost shifting standards for Discovery in a manner that promotes data security and privacy law compliance can encourage better privacy practices in E-Discovery as well

The Ecosystem Concept:A Holistic Approach to Privacy Protection

Proportionality remains a vague concept, in part due to the inherent difficulty of balancing two fundamentally important, but potentially conflicting values, particularly when no recognised method exists to definitively determine where the balance should lie. In the current global climate, privacy has increasingly found itself balanced against the necessity of a wide range of intrusive technological measures judged essential to the state’s fight against terrorism. The range of measures involved can make assessing proportionality complicated, as relying on the proportionality test which isolates and examines a particular legal measure independently, might not adequately identify the total risk presented to an individual’s privacy. In this article, it is proposed that one way of addressing this issue is through turning to the biological concept of the ecosystem for guidance. This concept recognises the existence of a closely interconnected system of actors, engaged in the exchange of information and resources. In particular, it places great importance on the interconnections between the various actors, and the effects one can have on another. This article therefore considers whether this approach can be utilised in order to conduct a more holistic proportionality assessment, and whether it provides a viable method of analysis within law

A Proportionality-Based Framework for Government Regulation of Digital Tracing Apps in Times of Emergency

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance. Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who tested positive for COVID-19. DTAs collect the most sensitive types of information, such as health-related and location or proximity information, which violates the right to privacy and the right to be free of surveillance. This sensitive information is normally legally protected. But in emergencies there are no legal restrictions limiting the collection of such data. The common privacy-law approach supports DTA implementation under the condition that the technology preserves the privacy of users. But this Article suggests that the privacy approach focuses on micro considerations and under-addresses the implications of DTA-based policy. Instead, this Article suggests rethinking DTA implementation during COVID-19 through the doctrine of proportionality. Often used by European Union courts in areas where decisions entail meaningful implications to individual rights, the doctrine offers a clear and workable normative evaluation of tradeoffs in a more nuanced, explicable, and transparent way. Highlighting macro considerations, the doctrine of proportionality suggests that 1) DTA-based policy is less proportionate compared to traditional contact-tracing methods; 2) policies created while relying on smartphones are inequitable and biased; and 3) the sharing of sensitive personal information with private companies will have irreversible social surveillance implications. Additionally, the proportionality method not only provides a flexible methodological tool to evaluate government decisions in times of emergency but also offers an opportunity to examine how governments achieve and justify the acceptance and assimilation of new technological policy measures, which may take societies in new directions. Part I establishes the framework of governance during COVID-19, the use of emergency powers, and the conflict between the public interest and individual rights. Part II explores the value of using the doctrine of proportionality as a method for policymaking during emergencies. Part III applies the doctrine of proportionality to the case study of DTA-based policy, exploring the parameters of its suitability, necessity, and proportionality stricto sensu. Proportionality stricto sensu assesses the desirability and relative proportionality of three policies that have been used to promote the public interest in different ways: a general shelter- at-home policy, a traditional-contact-tracing policy, and a DTA-based policy. Part IV discusses the policy implications of using a DTA-based policy

Social Data Discovery and Proportional Privacy

Social media platforms aggregate large amounts of personal information as social data that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns—concerns that should help define the proper scope of discovery. The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens of discovery against its benefits, creating important boundaries on discovery\u27s scope. Privacy burdens should be part of the proportionality analysis. By considering the privacy implications of social data discovery, courts can fashion fair and meaningful limits on the scope of social data discovery

The teleological account of proportional surveillance

This article analyses proportionality as a potential element of a theory of morally justified surveillance, and sets out a teleological account. It draws on conceptions in criminal justice ethics and just war theory, defines teleological proportionality in the context of surveillance, and sketches some of the central values likely to go into the consideration. It then explores some of the ways in which deontologists might want to modify the account and illustrates the difficulties of doing so. Having set out the account, however, it considers whether the proportionality condition is necessary to a theory of morally justified surveillance. The article concludes that we need and should apply only a necessity condition, but notes that proportionality considerations may retain some use in in practice, as a form of coarse‐grained filter applied before assessing necessity when deliberating the permissibility of potential forms of surveillance