Ch. 2: US Legal Framework Flashcards
What are the sources of U.S. law?
- Constitutions
- Legislation
- Regulations and Rules
- Case Law
- Common Law
- Contract Law
Is the right to privacy explicit in the U.S. Constitution.
No,
the word “privacy” is not in the U.S. constitution. However, some parts directly affect privacy such as the 4th Amendment which limits government searches. State constitutions may create stronger rights than those found in the U.S. constitution. For example, CA state constitution expressly recognizes a right to privacy.
What is legislation?
Laws passed by Congress or state legislatures.
What are Regulations and Rules?
Compliance expectations placed on the marketplace by regulatory agencies.
Some laws require regulatory agencies to issue regulations and rules.
What is Case Law?
Final decisions made by judges in court cases. When similar issues arise in the future, judges look to past decisions as precedent and decide the case in a manner consistent with past decisions - “stare decisis”
What is Common Law?
Legal principles that have developed over time in judicial decisions, often drawing on social customs and expectations.
What is a Consent Decree?
A judgment entered by consent of the parties whereby the defendant agrees to sop alleged illegal activity, typically without admitting guilt or wrongdoing. The legal document is approved by the judge and formalizes an agreement reached between a federal or state agency and an adverse party. The document describes the actions the defendant will take, and my be subject to a public comment period.
What is Contract Law?
It is a subcategory of Common Law.
What are the fundamental requirements for forming a binding contract?
- Offer
- Acceptance
- Consideration
What is an Offer?
Proposed language to enter into a bargain. It must be communicated to another person and remain open until it is accepted, rejected, retracted or has expired. A counteroffer ends the original offer.
What is Acceptance?
The assent or agreement by the receiver of the offer that the offer was accepted. Acceptance must be communicated to the offeror.
What is Consideration?
Is the bargain-for exchange. Legal benefit received by one person and the legal detriment imposed to the other. Consideration usually takes the form of money, property, or services.
What is Tort Law?
Are civil wrongs recognized by the law as the grounds for lawsuits. These wrongs result in an injury or harm that constitutes the basis for a claim.
What are the 3 general tort categories?
- Intentional Torts - wrongs that the defendant knew or should have known would occur through their actions or inactions.
- Negligent Torts - wrongs when the defendant’s actions were unreasonably unsafe.
- Strict Liability - wrongs that do not depend on the degree of carelessness by the defendant, but are established when a particular action causes damage.
What are examples of Privacy Torts?
intrusion upon seclusion, public revelation of private facts, casting a person in a false light, interfering with a person’s right to publicity, failing to provide adequate safeguards for PI
What is a Person?
Any entity with legal rights, including an individual or a corporation.
What is the meaning of Jurisdiction?
The authority of a court to hear a particular case. The court must have subject matter jurisdiction and personal jurisdiction.
What is Preemption?
A superior government’s ability to have its laws supersede those of an inferior government.
What is “Private Right of Action”?
The ability of an individual harmed by a violation of law to file a lawsuit against the violator.
What is Notice?
Is a description of the organization’s information management practices.
What is the purpose of a Notice?
- consumer education
2. corporate accountability
What does a typical Notice tell an individual?
- What information is collected
- How the information is used and disclosed
- How to exercise any choices about uses or disclosures
- Whether the individual can access or update the information
What is a Privacy Notice?
Often refers to external communications, issued to consumers, customers, or users.
What is a Privacy Policy?
Often refers to internal standards used within the organization.
What is Choice?
The ability to specify whether personal information will be collected and/or how it will be used or disclosed.
What is an “opt in” choice?
An affirmative indication of choice based on an express act of the person giving the consent.
What is an “opt out” choice?
A choice can be implied by the failure of the person to object to the use or disclosure.
What is Access?
The ability to view personal information held by an organization.
When must Access and Correction be provided?
When the information is used for any type of substantive decision making, such as for credit reports.
Which federal agencies engage in regulatory activities concerning privacy in the private sector?
- Federal Trade Commission (FTC)
- Federal Communications Commission (FCC)
- Department of Commerce (DoC)
- Department of Health and Human Service (HHS)
- Federal Reserve Board (Fed)
- Office of Comptroller of the Currency (OCC)
- Consumer Financial Protection Bureau (CFPB)
What privacy authority does the FTC have?
The general authority to enforce against “unfair and deceptive trade practices,” notably including the power to bring deception enforcement actions where a company has broken a privacy promise.
Who enforces privacy at the state level?
State attorney generals
How do state attorney generals bring enforcement actions?
Typically, pursuant to state laws prohibiting unfair and deceptive trade practices.
Who also plays a valuable role in governing privacy practices within industries?
Self regulatory regimes
What questions should be asked to understand any privacy related law, statute, or regulation?
- Who is covered by this law?
- What types of information (and what uses of information) are covered?
- What exactly is required or prohibited?
- Who enforces the law?
- What happens if I don’t comply?
- Why does this law exist?
What do the first 2 questions do?
Tell you the scope of the law.
What does the third question do?
Tells you what you need to know to comply with the law
What does questions 4 and 5 do?
They help you assess the risks associated with noncompliance or less than perfect compliance.
What does question 6 do?
Helps you understand the motivation behind the law.
What are the 3 Branches of the U.S. Government? & What is the role of each branch?
Executive Branch
Enforces laws
President, Vice President, Cabinet and Federal Agencies
Legislative Branch
Makes laws
Congress (house of representatives and senate)
Judicial Branch
Interprets the law (determines if constitutional)
Federal courts
What are SOURCES of law?
U.S. Constitution State Constitutions Legislation Regulations and Rules Common Law/Case Law Contract Law
What is the Supreme Law in the United States?
The U.S. Constitution
Where is the word “Privacy” mentioned in the U.S. Constitution?
The word Privacy is NOT mentioned in the U.S. Constitution
What is legislation?
Laws passed by federal and state legislatures.
What is Common or Case Law?
Final decisions by judges in court cases.
Judges look at precedent (past decisions) to decide how to rule in a new case that is consistent with these past decisions.
Laws/Precedents change, as technological and societal values evolve over time
What is required to have an enforceable (legally binding) contract?
Offer (terms of the agreement)
Acceptance (by the person to whom the offer was made), and
Consideration (bargained for exchange (e.g., money, property or services)).
Does the U.S. Constitution always override the State Constitution?
No, State Constitutions can create stronger rights than those provided by the U.S. Constitution
Do Federal Laws always override State Laws?
No, State Legislation may be stricter than national legislation. Federal law only override less strict state laws.
Who issues Regulations and Rules?
Regulations and Rules are issued by regulatory agencies (e.g., FTC and FCC) placing compliance expectations on industries
What AMENDMENTS to the United States Constitution have been interpreted to provide privacy protection?
3rd Amendment (Soldiers Quartered) 4th Amendment (Search and Seizure) 5th Amendment (Self-Incrimination) 14th Amendment (Due Process)
What is Jurisdiction?
The authority of a court to hear a particular case
What is the legal definition of “Person?”
Any entity with legal rights including:
Individuals (natural persons)
Corporations (legal person)
What is “Preemption?”
A superior government’s ability to have its laws supersede those of an inferior government
What is a “Private Right of Action?”
The ability of an individual harmed by a violation of a law to file a lawsuit against the violator
What are the roles and responsibilities of the Federal Trade Commission (FTC)?
General Authority to enforce rules against unfair and deceptive trade practices (including the power to bring deception enforcement actions where an organization has broken a privacy promise)
Statutory Responsibility for issues such as children’s online privacy and commercial email marketing.
Instrumental in developing U.S. privacy standards.
What are the roles and responsibilities of the Federal Communications Commission (FCC)?
Places significant compliance regulations on and governs the communications industry, such as television, radio, and telemarketing, and more recently, with online marketing developing such laws as the Telemarketing Sales Rule and Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act).
Along with the FTC, the FCC also enforces privacy laws.