Marc Rotenberg, Bilyana Petkova

European Data Protection Law Review, Volume 5 (2019), Issue 2, Page 266 - 270

Airbnb, Inc, and HomeAway.com v City of New York, Decision of the US Court for the Southern District of New York of 3 January 2019 The Fourth Amendment of the United States Constitution guarantees the ‘right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.’ The Fourth Amendment is violated when a search or seizure is found to be unreasonable. A New York City Ordinance requiring home-sharing companies to provide monthly records containing personal information of the companies’ users is an unreasonable search and seizure within the meaning of the Fourth Amendment.

Marc Rotenberg, Bilyana Petkova

European Data Protection Law Review, Volume 5 (2019), Issue 3, Page 453 - 457

New York v Department of Commerce, No 18-966, Judgment of the US Supreme Court of 27 June 2019 The Administrative Procedure Act (APA) requires federal agencies to follow certain procedures prior to agency action. The Supreme Court held that the rationale behind the decision of Secretary of Commerce Ross to add a citizenship question to the Census 2020 – to ensure enforcement of the Voting Rights Act – was a ‘contrivance’ and violated the APA. The practical consequence of the decision was to prevent the question about citizenship from appearing on the 2020 census. Following the decision, President Trump announced an Executive Order concerning ‘Collecting Information about Citizenship Status in Connection with the Decennial Census’ which may also rely upon pretextual arguments that can be subsequently challenged in court.

Marc Rotenberg, Natasha Babazadeh

European Data Protection Law Review, Volume 4 (2018), Issue 3, Page 400 - 403

Terrence Byrd v United States, Decision of the United States Supreme Court of 14 May 2018 The Fourth Amendment of the United States Constitution guarantees the ‘right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.’ A search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. The US Supreme Court found in Byrd v United States, 138 SCt 1518 (2018) that a driver in lawful possession of a rental vehicle has a reasonable expectation of privacy regardless of whether the person is named in the rental agreement.

Marc Rotenberg

European Data Protection Law Review, Volume 3 (2017), Issue 1, Page 47 - 70

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. – Article 12, Universal Declaration of Human Rights 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. – Article 17, International Convention on Civil and Political Rights In 2015, the United Nations (UN) established a Special Rapporteur on the Right to Privacy (SRP) following the disclosure of mass surveillance by the US National Security Agency. Consistent with the procedures for the establishment for Special Rapporteurs, the SRP was given a broad mandate to protect and promote the right to privacy set out in Article 12 of the Universal Declaration of Human Rights (UDHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). The mandate set out the expectation that the Special Rapporteur would gather relevant information, make recommendations, raise awareness, report violations, identify emerging issues and report annually on his work. This article reviews the background of mandate, summarizes the activities to date, identifies shortcomings and then proposes a series of reforms, drawing on the literature of UN Special Procedures, the work of other Special Rapporteurs and human rights nongovernmental organisations in the privacy field. Although Special Rapporteurs often encounter delays at the outset of a mandate, the Special Rapporteur has created unnecessary delay with the effort to redefine the right to privacy rather than to ‘promote and protect’ the well-established human rights norm that is the cornerstone of the privacy mandate.

Marc Rotenberg, Aimee Thomson

European Data Protection Law Review, Volume 2 (2016), Issue 3, Page 428 - 431

Spokeo, Inc v Robins, 136 Supreme Court 1540 (2016) Article III of the US Constitution requires plaintiffs in federal court to have suffered an injury-in-fact that is fairly traceable to the defendant and likely to be redressed by the court. The plaintiff’s injury-in-fact must be concrete, particularized, and actual or imminent. The US Supreme Court found that the federal appeals court did not analyse the concreteness of plaintiff Thomas Robins’s allegation that Spokeo, Inc violated the Fair Credit Reporting Act. The case is remanded so the appeals court can consider whether the allegation is concrete.