Chapter 9: Legal Requirements Flashcards
What is in the United States the highest possible source of law?
The U.S. Constitution is the highest possible source of law in the United States, and no laws from other sources may conflict with the provisions in the Constitution and its amendments.
How many articles does main text of the U.S. Constitution include?
The main text of the Constitution contains seven articles.
U.S. Constitution: What does Article 1 establish?
Article 1 establishes the legislative branch.
U.S. Constitution: What does Article 2 establish?
Article 2 establishes the executive branch.
U.S. Constitution: What does Article 3 establish?
Article 3 establishes the judicial branch.
U.S. Constitution: What does Article 4 defines?
Article 4 defines the relationship between the federal government and the governments of the states.
U.S. Constitution: What does Article 5 creates?
Article 5 creates a process for amending the Constitution itself.
U.S. Constitution: What does Article 6 contains?
Article 6 contains the supremacy clause, establishing that the Constitution is the supreme law of the land.
U.S. Constitution: What does Article 7 sets forth?
Article 7 sets forth the process for the initial establishment of the federal government.
What is necessary to amend the U.S. Constitution?
- The amendment process requires that both houses of Congress pass the amendment by a two-thirds majority.
- After that approval by Congress, the amendment is sent to the states, who have the opportunity to ratify it. Amendments are only added to the Constitution after ratification by three-quarters(38) of the 50 states.
How many amendments does the U.S. Constitution contain?
The U.S. Constitution currently contains 27 amendments, covering a range of topics from establishing individual rights to defining the terms of presidential succession.
What is known as the Bill of Rights?
The first 10 of these amendments, known as the Bill of Rights, enumerate individual civil liberties protections, including freedom of speech, freedom of assembly, and freedom of religion.
What is the 4th Amendment of the U.S. Constitution about?
The Fourth Amendment to the U.S. Constitution reads as follows:
The right of people to be secure in their:
- persons,
- houses,
- papers
- and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This amendment establishes the right of individuals to be protected against some government interference in their private lives.
Supreme Court precedent further establishes the right of an individual “to be let alone.”
Where do most privacy and security laws that apply within the united states come from?
Most of the privacy and security laws that apply within the United States today come not from the Constitution but from the standard legislative process, mentioned earlier in this chapter.
Proposed bills are passed by both houses of Congress and then signed into law by the president.
These laws, of course, only enforceable if they are compatible with the terms of the Constitution.
What is Administrative Law in the United States?
Agencies of the executive branch promulgate sets of rules and regulations that implement many of the laws passed by Congress.
These rules make up the body of administrative law that is commonly documented in the Code of Federal Regulations (CFR).
For example, in 1996 President Clinton signed the Health Insurance Portability and Accountability Act (HIPAA) into law.
This law, in part, imposed new security and privacy obligations on healthcare providers and other covered entities. It did not, however, go into great detail on the specific privacy and security requirements that applied to those entities.
Instead, it charged the Department of Health and Human Services (HHS) with creating administrative law containing those implementation details.
What is Case Law in the united states?
The main role of the judicial branch is to interpret the laws and apply them to resolve civil and criminal disputes.
The interpretations made by courts over time establish a body of case law that other courts may refer to when making their own decisions.
In many cases, the case law decisions made by courts are binding on both that court and any subordinate courts. Courts generally follow the legal principle of stare decisis (Latin for “let the decision stand”) that states that previous decisions on questions of law serve as precedent guiding the future decisions made by that court and its subordinates.
What is Common Law?
The United States is among a large group of nations that observe common law, a set of judicial precedents passed down as case law through many generations.
This subset of common law includes many long-standing legal principles that have never been codified in legislation but, nonetheless, guide many judicial decisions.
The body of common law may be traced back to the English court systems, and therefore, is typically found in modern-day countries that were historically British colonies.
Each of those nations gradually adapted common law principles to its own cultural and judicial philosophy over the years.
What are Contracts?
Contracts are legally binding agreements between parties that they will exchange things of value with each other.
What happens if two parties agreed to enter into a contract?
When two parties have agreed to enter into a contract, they become legally liable to uphold their obligations. As long as the terms of the contract do not violate the law, it is enforceable in court.
What should a contract spell out specifically?
Contracts should spell out the specific liability that each party has for violations of the contract.
Name 5 conditions that need to be met for a contract to be valid?
- Each party to the contract must have the capacity to agree to the contract.
- There must be an offer made by one party.
This offer may be verbal or in writing, but written terms always take precedence over verbal terms and many types of transactions, such as those involving real estate, must be conducted in writing. - The other party must accept the offer
- Consideration must be given, meaning that both parties must exchange something of value.
For example, if I enter into a contract to sell you my car, I am giving you the car, something of value, and in return, you are paying me in cash, something of value. - Finally, there must be mutual intent to be bound. Both parties must enter into a contract with the intention that they are agreeing to the terms.
When analyzing a new law, what is the first thing that a privacy professional should do?
When analyzing a new law, one of the first things that a privacy professional should do is determine the jurisdiction of the law.
The jurisdiction is the geographic area to which the law applies. Determining jurisdiction is done by reading the law itself and also assessing the power of the body that created the law.
Although this might seem straightforward, interpreting privacy laws is fairly complex.
After establishing the jurisdiction of a law what step comes next?
Once you establish the jurisdiction of a law, you should then determine the scope and applicability of the law to your own organization’s operations.
What is the definition of liability?
Liability is a term of art in the law. Lack’s Law Dictionary defines liability as “responsible or answerable in law; legally obligated.”
Simply put, liability is what allows a party to take action against another in court.
What is Criminal liability?
Criminal liability occurs when a person violates a criminal law. If a person is found guilty of a criminal law violation, they may be deprived of their liberty through
imprisonment
fined
and/or forced to pay restitution to their victims
Charges of criminal liability are normally brought by the government, acting through a state or federal prosecutor.
What is Mens rea?
One element required to provide a criminal violation is mens rea. Latin for “guilty mind”, mens rea requires that the person had criminal intent, meaning that they either intended to commit a crime or knew that their action or lack of action would result in a crime.
The standard of proof in criminal cases is that the prosecution must present evidence that demonstrates the defendant committed the crime, beyond a reasonable doubt.
This means that the prosecution must convince the jury that, after considering the evidence offered, there is no other plausible conclusion than that the defendant is guilty.
What is Civil liablity?
Civil liability occurs when one person claims that another person has failed to carry out a legal duty that they were responsible for.
Cases claiming civil liability are normally brought to court by one party, that claimant, who is accusing another party, the respondent, of the violation.
The claimant may be an
individual
a corporation
or the government
bringing a civil enforcement action.
What is strict liablity?
Some civil cases proceed under a different standard known as strict liability.
The strict liability standard says that a person is responsible for the consequences of their actions, even if they could not reasonably anticipate the adverse outcome.
What is the preponderance of the evidence standard?
Civil penalties often use a different standard. Most commonly this is the preponderance of the evidence standard, which means that the prevailing party must present evidence demonstrating that there is a greater than 50% chance that their claim is correct.
