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CONTENTS Introduction, 3 I. Transportation Agenciesâ Use of Intelligent Transportation Systems and Other Methods to Collect Data, 5 A. Intelligent Transportation Systems, 5 B. Secure Data Collected and/or Retained by Transportation Agencies, 6 C. Monitoring Data Collected and/or Retained by Transportation Agencies, 6 II. Transportation Agenciesâ Use of ITS to Collect Data, 7 A. Legal Authority for ITS, 7 B. Traffic Monitoring Systems, 8 C. Electronic Toll Collection, 8 III. Whether Privacy Rights Under the United States Constitution Apply to Personal and Locational Data, 9 A. Introduction, 9 B. Evolution of Privacy Rights, 9 C. The Fourth Amendment and a Constitutional Right to Privacy, 12 D. Whether There Is an Implied Constitutional Claim for a Privacy Violation, 15 E. Whether There Is a Section 1983 Claim for an Intentional or Unintentional Release of Data, 17 IV. Whether There Are Federal Statutes Applicable to Transportation Agenciesâ Collection or Disclosure of Data, 20 A. Evolution of Federal Statutory Privacy Rights, 20 B. Privacy Act of 1974, 20 C. Driverâs Privacy Protection Act, 22 D. Other Federal Privacy Laws, 23 E. Proposed Federal Privacy Legislation, 24 F. Consumer Privacy Bill of Rights, 25 V. The Right to Privacy Under State Constitutions, 26 A. State Constitutions Recognizing a Right to Privacy, 26 B. States Recognizing an Implied Cause of Action for a Violation of a State Constitutional Provision, 27 VI. Right to Privacy Under State Statutes, 28 A. Introduction, 28 B. Specific State Privacy Statutes, 29 C. Whether There Are Separate Claims Based on the Owner or Type of Data or on the Collection, Use, Disclosure, or Maintenance of Data, 30 D. Privacy Policies Required by States, 32 E. State Laws Banning or Restricting the Use of Certain Technology, 33 F. State Legislative Trends and Proposed Legislation, 33 VII. Whether State Data Breach Notification Laws Apply to Transportation Agencies, 35 A. Definition of a Data Breach, 35 B. States Having Data Breach Notification Statutes, 35 C. Applicability of the Statutes to Government Agencies, 36 D. State Breach Notification Laws Authorizing Civil Penalties or Claims for Damages, 37 VIII. Remedies at Common Law for Invasion of Privacy, 40 A. States that Recognize an Invasion of Privacy at Common Law, 40 B. Invasion of Privacy, 41 C. Applicability of a Common Law Right of Privacy to Transportation Agencies, 42 IX. Whether Transportation Agencies Are Potentially Liable for a Disclosure of Data, 43 A. Whether a Claim for a Release of Data Is Barred by Sovereign Immunity or a State Tort Claims Act, 43 B. Claims Against Transportation Agencies Arising Out of the Disclosure of Secure Data or Monitoring Data, 45 C. Liability of Contractors for Data Disclosure, 48 D. Causes of Action Alleged Against Private Companies for Privacy Violations, 48 X. Disclosures of Data Under the Federal or a State FOIA or State Public Records Disclosure Law, 49 A. Introduction, 49 B. The Federal FOIA and Release of Data, 49 C. State FOIA or Public Records Disclosure Laws and a Release of Data, 49 D. Agency Waiver of Privacy Exemption, 51 E. Whether Both FOIA Requests and Discovery Requests May Be Used to Obtain a Transportation Agencyâs Data, 51 Conclusion, 52 Appendices, 54 LRD 71_COVER_final.indd 2 7/11/16 8:51 AM
