I took a break from case law over the holiday, but did do some other reading and listening. Here are some bits you might find interesting on the recent FERPA “health and safety exemption” amendments, privacy as a concept and data and records administration.
FERPA amendments. The Proskauer Rose Privacy Law Blog reports that the United States Department of Education has published finalized amendments to the Family Educational Rights and Privacy Act. Notably, the Department received comments critical of its proposed “rational basis” standard for disclosure in health and safety emergencies. (See Yasmin Nissim’s paper for a view that would suggest the amendment is a consequence of “moral panic.”) The DOE defends the new standard in the comments to the final regulations, but has reacted to the pro-privacy feedback by requiring institutions to record the “articulable and significant threat” to health and safety that forms the basis for a health and safety related disclosure.
Privacy as a concept. If you’re inclined to academic writing, you may like an article by Karen Eltis of the University of Ottawa entitled, “Can the Reasonable Person Still Be ‘Highly Offended’? An Invitation to Consider the Civil Law Tradition’s Personality-Rights Based Approach to Tort Privacy.” As you might expect, it’s a critique of the reasonable expectation of privacy doctrine, which Professor Eltis describes as the prevailing tort standard in common law jurisdictions. I’ve read similar critiques before, but wasn’t familiar with the strong dignity-based conception of privacy that prevails in civil law, a conception that Professor Eltis supports. Check out Dan Solove’s Understanding Privacy if you’re interested in reading more about conceptualizing privacy.
Data and records administration. Lastly, this New York Times article on the archiving of Bush administration data is worth a check. Would it surprise you that the administration is not immune from the problem of ballooning data stores? The article does raise how open government legislation adds some significant complexity to the challenge of records management, an issue for the public sector as a whole and one touched on in the most recent This Week in Law. Also related: this video lecture of computer scientist Kai Li on “disk-based de-duplication storage.” Super-technical and mostly over my head, but I did find the general description of how corporate data management works very enlightening. You may too.
We had a great holiday at home in TO. Unable to get away, we had a nice time kicking around with family. Hugo (20 months now) discovered snow. I got all excited after a big storm and hauled him over to nearby Withrow Park with a new toboggan at 7:30 am. Not a sole around and it was about minus fifteen centigrade. I gave him serious snow job on our first run and he freaked. So we’re more into father-son shoveling now and, as the attached picture might suggest, he’ll live to toboggan another day. (Seanna and I got each other a new camera over the holiday. We’re having great fun with it and she’s encouraged me to post this picture. You may see more personal pictures over time, though I’m still feeling somewhat shy.)
I hope you’re as rested and charged up about this year as I am. Best wishes.