The path towards clear and convincing digital privacy rights

Frederick V Greene, Purdue University


This study was a legal based inquiry to determine to what extend digital privacy rights are adequately protected by existing law. Because the major statutory vehicle that guides privacy rights in America was passed in 1986, the courts have had to address issues not contemplated by the statute. This study reviews the rulings of all twelve United States Courts of Appeal to determine whether or not digital privacy rights are expanded or limited. Comparisons are made between various circuits and different regions of the country. Three questions are addressed in this study, summarized as; a question about the current status of digital privacy laws; a question about the impact of court decisions on digital privacy rights; and a question and assessment about the adequacy of digital privacy laws. Also, recommendations are suggested for how digital privacy rights can be enhanced in the future. These recommendations would first change the standard needed to issue warrants and to access an individuals’ digital privacy rights to a “clear and convincing” analysis and standard. Secondly, the author recommends that digital privacy rights should become analogous to intellectual property rights and should have the same level of protection afforded intellectual property rights. Although digital privacy is not yet firmly recognized as more akin to Intellectual Property deserving of heightened protection, this study recommends that digital privacy, along with trade secret, copyright and patents, and trademark law should all be considered a type of intellectual capital that needs to be protected from those not authorized to access or utilize that intellectual property.




Naimi, Purdue University.

Subject Area

Law|Intellectual Property|Organizational behavior

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