06 June 2015

Metadata and Divides

'Judicial Review of Mass Metadata Surveillance in the Post-Snowden Era' (University of Cambridge Faculty of Law Research Paper No. 32/2015) by Nora Ni Loideain comments
Legal frameworks exist within democracies to prevent the misuse and abuse of personal data that law enforcement authorities obtain from private communication service providers. The fundamental rights to respect for private life and the protection of personal data underpin this framework within the European Union. Accordingly, the protection of the principles and safeguards required by these rights is key to ensuring that the oversight of State surveillance powers is robust and transparent. Furthermore, without the robust scrutiny of independent judicial review, the principles and safeguards guaranteed by these rights may become more illusory than real. 
Following the Edward Snowden revelations, major concerns have been raised worldwide regarding the legality, necessity and proportionality standards governing these laws. 
In 2014, the highest court in the EU struck down the legal framework that imposed a mandatory duty on communication service providers to undertake the mass retention of metadata for secret intelligence and law enforcement authorities across the EU. This article considers the impact of the Snowden revelations on this landmark judgment. Subsequently, the analysis explores the significance of this ruling for the future reform of EU law governing metadata surveillance and its contribution to the worldwide debate on blanket and covert monitoring in the post-Snowden era.
'Overcoming the Public-Private Divide in Privacy Analogies' by Victoria Schwartz in (2015) Hastings Law Journal (forthcoming) comments
When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography would likely constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This scenario illustrates a public-private divide in which privacy violations by the government are treated separately from privacy violations by the private sector. Despite this divide, some courts have analogized from the Fourth Amendment into the trade secret context, while the Supreme Court has rejected such an analogy in the opposite direction. 
A similar but reverse phenomenon occurs in the workplace privacy context. Traditionally, whether an employee whose privacy has been invaded by an employer is likely to prevail in court depends in part on whether the employer is in the public or private sector. The longstanding wisdom is that public sector employees receive stronger workplace privacy protections than similarly situated private sector employees as a result of Fourth Amendment protections. Nonetheless, Supreme Court precedent suggests that private sector analogies are appropriate in evaluating public workplace privacy cases. 
Neither courts nor scholars have offered any systematic criteria for evaluating when privacy analogies across the public-private divide are appropriate. Rather courts import or reject privacy analogies between the public and private sectors without any meaningful consideration of when such analogies make sense. This Article offers a coherent and consistent normative framework to analyze when privacy analogies are appropriate across the public-private divide. In deciding whether such privacy analogies make sense, courts ought to apply a multi-factored test in which they consider the presence or absence of factors within the privacy-invading actor that could justify the traditional public-private distinction. These factors include the power of coercion, ability to harm identity formulation or the protection of democracy, access to superior technology, and presence of bureaucratic features.