Science and Technology Law Review

Public Perceptions Can Guide Regulation of Public Facial Recognition

2024-01-26T02:53:26+00:00

Facial recognition technology is changing how people pass through customs at airports, check in at schools, and move anonymously in public spaces. Yet despite these transformations, its use by the government is largely unregulated. This Article informs the policy and doctrinal debates about facial recognition by presenting a public attitudes perspective. These three novel empirical studies show the nuanced views that Americans hold about government use of facial recognition. The data reveal that people are generally comfortable with the government using facial recognition to investigate serious crimes, enhance the security of controlled spaces like airports and schools, and increase the efficiency of identity verification in some contexts. But people are often not comfortable with casual governmental facial recognition use in public spaces. This pattern of strong comfort for tailored uses persisted even when, in a second study, participants were primed with negative information about the accuracy of facial recognition. Here I explore the implications of these results for both current Fourth Amendment doctrine as well as future legislative reform, promoting a balanced approach that allows tailored use of facial recognition while regulating its purposes.

Unavoidability in U.S. Privacy Law

2024-01-26T16:22:40+00:00

Why is U.S. privacy law structured the way it is, with a series of sectoral laws rather than a cross-sectoral law or laws? Why does U.S. privacy law protect information shared in certain contexts—such as information shared with an attorney, a healthcare provider, or a financial provider—rather than particular types of information? One possibility is that sectoral laws apply to contexts in which people typically share highly “sensitive” information containing intimate secrets or with the potential to harm them financially or psychologically.

But this Article argues that there is something else at play—that in fact, an under-discussed and underappreciated factor has been a key consideration throughout the history of U.S. privacy law: the unavoidability of information sharing. Tracing the development of several areas of sectoral U.S. privacy law over time, this Article shows that as society changed and contexts emerged in which individuals increasingly found they could not avoid sharing information about themselves with other parties, policymakers repeatedly responded by ratcheting up the privacy protections for information shared in those specific contexts.

Taking the discussion of unavoidability into the modern era, this Article ties the tradition of unavoidability consideration in U.S. privacy law to lawmakers’ current struggle to craft comprehensive privacy legislation. Recent years have seen widespread recognition that the sectoral approach is no longer adequate in the modern information economy. But legislators struggle to decide whether it is sufficient to focus on facilitating individuals’ control over their data—as U.S. privacy law historically has strived to do—or whether the law should more directly restrict the use of data in certain ways or for certain purposes. This Article argues that the current privacy legislation struggle, and the types of innovative legislative provisions being proposed, can be better explained with the aid of unavoidability analysis

Come As You Are?: Democratizing Healthcare Through Black Church-Telehealth Initiatives

2024-01-26T16:39:01+00:00

Drawing from the phrase “come as you are,” which is frequently used in Black Churches to encourage and welcome people to church spaces for spiritual restoration and healing irrespective of their various social and economic dispositions, this Article aims to describe how telehealth partnerships with community organizations, such as Black Churches, can help democratize healthcare.

In this project, I develop two models for Black Church-Telehealth Initiatives—a Telehealth Clinic on the Church’s campus and a Designated Telehealth Space with the requisite technology to facilitate telehealth encounters—to argue that Black Church-Telehealth Initiatives can help address certain social determinants of health, such as medical mistrust and the digital divide. The Telehealth Clinic would be a licensed medical facility where patients are assisted by medical personnel with seeing a remote physician via the appropriate technology (e.g., computer, video conference software, internet access, and medical devices to obtain certain biometric data). The Designated Telehealth Space, on the other hand, would be a room equipped with non-medical technology that is open to community members without access to the requisite technology for telehealth encounters.

Black Churches are already important locations for promoting healthcare and can help further democratize healthcare via telehealth, if certain legal hurdles can be resolved. By exploring federal and state law and policy, I examine the legal barriers to telehealth expansion in general, and legal hurdles specific to these initiatives. This Article argues that federalism principles and widespread variation amongst state laws on physician licensure may make it more difficult to democratize healthcare via telehealth. Moreover, depending on the extent of the religious affiliation, Black Church-Telehealth Initiatives may fit into broader trends toward an increased alignment of healthcare institutions with religious organizations and their doctrines. Finally, legal and policy reforms are needed to address certain federal and state limitations on Medicare and Medicaid reimbursement, which may deter healthcare providers from collaborating with Black Churches to establish this Article’s initiatives. This makes the need for regulatory reform urgent. Indeed, as healthcare organizations partner with community organizations to expand access to telehealth, creative legal solutions will be required to subject those community organizations to important health laws and policies—including medical privacy and confidentiality laws—without stifling innovation and collaboration.

Gene-Centric Laws in the Postgenomic Era: The Need for Protection of Epigenetic Information

2024-01-26T16:56:41+00:00

In recent decades, special attention has been given to the privacy and discrimination risks associated with genetic information. Federal, state, and international laws all contain specific protections for the use of genetic information in a variety of contexts, including insurance and employment. Yet the very considerations motivating special protections for genetic information extend beyond mere genetics. Epigenetics involves the study of heritable changes in gene function that do not involve changes in the DNA sequence. Epigenetic data shares a number of normative similarities and policy concerns with genetic data, and in some ways, presents an even greater privacy and nondiscrimination risk than genetic data. However, epigenetic information remains unprotected by existing genetic privacy and nondiscrimination laws, which are based on an outdated conception of health and disease, focused narrowly on genes and genetic information. This Note argues that epigenetic information warrants the same protections as genetic information and calls for an amendment of existing genetic privacy and nondiscrimination laws to broaden the definitions of the data at stake to encompass epigenetic and other postgenomic information.