PAUL OHM, University of Colorado Law School
Email: paul.ohm@colorado.edu

Nothing in society poses as grave a threat to privacy as the Internet Service Provider (ISP). ISPs carry their users' conversations, secrets, relationships, acts, and omissions. Until the very recent past, they had left most of these alone because they had lacked the tools to spy invasively, but with recent advances in eavesdropping technology, they can now spy on people in unprecedented ways. Meanwhile, advertisers and copyright owners have been tempting them to put their users' secrets up for sale, and judging from a recent flurry of reports, ISPs are giving in to the temptation and experimenting with new forms of spying. This is only the leading edge of a coming storm of unprecedented and invasive ISP surveillance.

This Article proposes an innovative new theory of communications privacy to help policymakers strike the proper balance between user privacy and ISP need. We cannot simply ban aggressive monitoring, because ISPs have legitimate reasons for scrutinizing communications on an Internet teeming with threats. Using this new theory, policymakers will be able to distinguish between an ISP's legitimate needs and mere desires.

In addition, this Article injects privacy into the network neutrality debate - a debate about who gets to control innovation on the Internet. Despite the thousands of pages that have already been written about the topic, nobody has recognized that we already enjoy mandatory network neutrality in the form of expansive wiretapping laws. The recognition of this idea will flip the status quo and reinvigorate a stagnant debate by introducing privacy and personal autonomy into a discussion that has only ever been about economics and innovation.

NICOLAS P. TERRY, Saint Louis University School of Law
Email: terry@slu.edu

This article is principally concerned with a subset of electronic health records known as personal health records. In contrast to the more familiar charts, paper records, and electronic medical records maintained by health care providers, personal health records are medical records created and maintained by patients. A personal health records model is superficially attractive because it seems to lack the "misaligned incentives," network effects, and other market failure problems associated with the financing of a national inter-operative EHR model, while the model's patient-centricity purportedly avoids the privacy-confidentiality-security externalities inherent in electronic health records. The principal thrust of this article is that personal health records are dangerously flawed adjuncts to or substitutes for provider-centric records, and while lacking many of the touted quality or cost-reduction benefits of oft-criticized electronic health records they pose substantially higher levels of risk regarding security, privacy, and confidentiality. The conclusion is that, as with their technically more complex electronic health records sibling, personal health records require a fundamental re-working of the legal model applicable to all electronic health records.

JIM HARPER, The Cato Institute
Email: jharper@cato.org

In last summer's debate over immigration reform, Congress treated a national electronic employment eligibility verification (EEV) system as a matter of near consensus. Intended to strengthen internal enforcement of the immigration laws, electronic EEV is an Internet-based employee vetting system that the federal government would require every employer to use.

Broad immigration reform failed before Congress thoroughly considered national EEV, but the lines of debate have been drawn. Advocates in Congress will try to attach a nationwide worker registration system to any immigration bill Congress considers, and the Bush administration recently announced steps to promote such a system.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally. Deemed ineligible by a database, millions each year would go pleading to the Department of Homeland Security and the Social Security Administration for the right to work. By increasing the value of committing identity fraud, EEV would cause that crime's rates to rise.

Creating an accurate EEV system would require a national identification (ID) system, costing about $20 billion to create and hundreds of millions more per year to operate. Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. "Mission creep" all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans' lives even further.

KAY MATHIESEN, University of Arizona
Email: kmathiesen@gmail.com

Information rights include rights to create and communicate information (e.g., freedom of expression, freedom of association), to control others' access to information (e.g., privacy and intellectual property), and rights to access information (e.g., freedom of thought, the right to read). This paper focuses on those rights related to free access to information and argues that access to information is indeed a fundamental human right. It is further argued that the right to access is not merely a liberty right, but also a welfare right. That is, individuals' information rights place duties on governments to provide access to information.

CAREN MYERS MORRISON, NYU School of Law
Email: caren.myers@nyu.edu

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability, instead of enabling greater public understanding, risks degrading the value of the information obtained.

There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system. This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public, but was traditionally hard to obtain. Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application. The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, but divorced from identifying data. This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight.