Digital Commons Network^™

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support …

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt

Faculty Scholarship

The emergence of Big Data challenges the conventional boundaries between governing, exchange, and security. It ambiguates the lines between commerce and surveillance, between governing and exchanging, between democracy and the police state. The new digital knowledge reproduces consuming subjects who wittingly or unwittingly allow themselves to be watched, tracked, linked and predicted in a blurred amalgam of commercial and governmental projects. Linking back and forth from consumer data to government information to social media, these new webs of information become available to anyone who can purchase the information. How is it that governmental, commercial and security interests have converged, coincided, …

Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale

Faculty Scholarship

Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Individuals are rapidly losing the ability to affect their own image on the web - or even to know what data are presented about them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests.

Technology’s impact on privacy and democratic culture needs to be at the center of internet policy-making. Yet before they …

Cloud Computing: Storm Warning For Privacy?, Nicole Ozer, Chris Conley

Faculty Scholarship

“Cloud computing” - the ability to create, store, and manipulate data through Web-based services - is growing in popularity. Cloud computing itself may not transform society; for most consumers, it is simply an appealing alternative tool for creating and storing the same records and documents that people have created for years. However, outdated laws and varying corporate practices mean that documents created and stored in the cloud may not have the same protections as the same documents stored in a filing cabinet or on a home computer. Can cloud computing services protect the privacy of their consumers? Do they? And …

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …