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Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan
Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan
Faculty Scholarship
Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.
Privacy nicks come from the …
Against Engagement, Neil Richards, Woodrow Hartzog
Against Engagement, Neil Richards, Woodrow Hartzog
Faculty Scholarship
In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet
Our goal in this Article is to isolate …
Kafka In The Age Of Ai And The Futility Of Privacy As Control, Daniel Solove, Woodrow Hartzog
Kafka In The Age Of Ai And The Futility Of Privacy As Control, Daniel Solove, Woodrow Hartzog
Faculty Scholarship
Despite writing more than a century ago, Franz Kafka captured the core problem of digital technologies—how individuals are rendered powerless and vulnerable. Over the past fifty years, and especially in the twenty-first century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data.
In this Article, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the …
Chapter 16: Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe
Chapter 16: Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe
Faculty Scholarship
We live in an age of predictive algorithms.1 Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.2 One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.3 The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.4 For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …
To Democratize Algorithms, Ngozi Okidegbe
To Democratize Algorithms, Ngozi Okidegbe
Faculty Scholarship
Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.
This Article contends that the current approach to democratization is …
Discredited Data, Ngozi Okidegbe
Discredited Data, Ngozi Okidegbe
Faculty Scholarship
Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.
This Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the police, pretrial …
Bridging The Computer Science – Law Divide, Azer Bestavros, Stacey Dogan, Paul Ohm, Andrew Sellars
Bridging The Computer Science – Law Divide, Azer Bestavros, Stacey Dogan, Paul Ohm, Andrew Sellars
Faculty Scholarship
Many pressing societal questions can be answered only by bringing experts from different disciplines together. Questions around misinformation and disinformation, platform power, surveillance capitalism, information privacy, and algorithmic bias, among many others, reside at the intersection of computer science and law. We need to develop institutions that bring together computer scientists and legal scholars to work together on issues like these, and to train new innovators, thought leaders, counselors, and policymakers with hybrid training in both disciplines. In Universities, the disciplines of Computer Science (CS) and Law are separated by many wide chasms. Differences in standards, language, methods, and culture …
Competition And Innovation: The Breakup Of Ig Farben, Felix Poege
Competition And Innovation: The Breakup Of Ig Farben, Felix Poege
Faculty Scholarship
The relationship between competition and innovation is difficult to disentangle, as exogenous variation in market structure is rare. The 1952 breakup of Germany’s leading chemical company, IG Farben, represents such a disruption. After the Second World War, the Allies occupying Germany imposed the breakup because of IG Farben’s importance for the German war economy instead of standard antitrust concerns. In technology areas where the breakup reduced concentration, patenting increased strongly, driven by domestic firms unrelated to IG Farben. An analysis of patent texts shows that an increased propensity to patent does not drive the effect. Descriptively, IG Farben’s successors increased …
Bias And Biometrics: Regulating Corporate Responsibility And New Technologies To Protect Rights, Erika George
Bias And Biometrics: Regulating Corporate Responsibility And New Technologies To Protect Rights, Erika George
Faculty Scholarship
A growing body of literature has documented the ways in which algorithms and new technology are being deployed in ways that discriminate and violate human rights. The regulatory environment is still evolving, but not as rapidly as new technologies are being introduced by private corporations and implemented in public settings. Governments are using AI in immigration and asylum determinations and law enforcement, arenas where racism and xenophobia can often arise. In the aftermath of the racial justice uprisings following the murder of George Floyd, some technology firms pledged to reconsider providing surveillance technology to police without protections in place. This …
The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards
The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards
Faculty Scholarship
Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …
Legislating Data Loyalty, Woodrow Hartzog, Neil Richards
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 …
Federal Rules Of Platform Procedure, Rory Van Loo
Federal Rules Of Platform Procedure, Rory Van Loo
Faculty Scholarship
Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person's public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …
The Covid-19 Pandemic And The Technology Trust Gap, Johanna Gunawan, David Choffnes, Woodrow Hartzog, Christo Wilson
The Covid-19 Pandemic And The Technology Trust Gap, Johanna Gunawan, David Choffnes, Woodrow Hartzog, Christo Wilson
Faculty Scholarship
Industry and government tried to use information technologies to respond to the COVID-19 pandemic, but using the internet as a tool for disease surveillance, public health messaging, and testing logistics turned out to be a disappointment. Why weren’t these efforts more effective? This Essay argues that industry and government efforts to leverage technology were doomed to fail because tech platforms have failed over the past few decades to make their tools trustworthy, and lawmakers have done little to hold these companies accountable. People cannot trust the interfaces they interact with, the devices they use, and the systems that power tech …
A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog
A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog
Faculty Scholarship
Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.
Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …
Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany Li
Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany Li
Faculty Scholarship
The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors are using new technologies, like heat sensing, and technologically-influenced programs, like contact tracing, alike in response, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the …
Gdpr And The Importance Of Data To Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans
Gdpr And The Importance Of Data To Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans
Faculty Scholarship
What is the impact of the European Union’s General Data Protection Regime (“GDPR”) and data regulation on AI startups? How important is data to AI product development? We study these questions using unique survey data of commercial AI startups. AI startups rely on data for their product development. Given the scale and scope of their business models, these startups are particularly susceptible to policy changes impacting data collection, storage and use. We find that training data and frequent model refreshes are particularly important for AI startups that rely on neural nets and ensemble learning algorithms. We also find that firms …
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
Faculty Scholarship
An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is …
Digital Market Perfection, Rory Van Loo
Digital Market Perfection, Rory Van Loo
Faculty Scholarship
Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. …
Data Generated By New Technologies And The Law: A Guide For Massachusetts Practitioners, Andrew Sellars
Data Generated By New Technologies And The Law: A Guide For Massachusetts Practitioners, Andrew Sellars
Faculty Scholarship
This brief paper, created as part of a training on new technologies and evidence for MCLE New England, outlines the standards used to compel disclosure of information under the Stored Communication Act, and reviews the types of data stored on various consumer devices and their likely custodians, as well as cases and notes relevant to each devices. The paper serves as a quick introduction and checklist for those considering gathering information from these devices in the course of investigations in Massachusetts. The devices outlined include cell phones, social media platforms, secure messaging services, fitness trackers, home assistant devices (or "smart …
Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li
Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li
Faculty Scholarship
The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.
The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.
This report highlights …
The Business Of Ai Startups, James Bessen, Stephen Michael Impink, Robert Seamans, Lydia Reichensperger
The Business Of Ai Startups, James Bessen, Stephen Michael Impink, Robert Seamans, Lydia Reichensperger
Faculty Scholarship
New machine learning techniques have led to an acceleration of “artificial intelligence” (AI). Numerous papers have projected substantial job losses based on assessments of technical feasibility. But what is the actual impact? This paper reports on a survey of commercial AI startups, documenting rich detail about their businesses and their impacts on their customers. These firms report benefits of AI that are more often about enhancing human capabilities than replacing them. Their applications more often increase professional, managerial, and marketing jobs and decrease manual, clerical, and frontline service jobs. These startups sell to firms of different sizes, in different industries …
A ;-) At The Past And Future Of English, Tiffany Li
A ;-) At The Past And Future Of English, Tiffany Li
Faculty Scholarship
It is always with a certain amount of wry, knowing amusement that we turn to the thoughts of people from the past remarking on the future (that is, our present). It is similar to how slightly older children view slightly younger children. They were so innocent then, those thinkers of the past! Look at what they thought computers could do, what language could be! How adorably naïve! Not like us, we who have put away our childish things.
Of course, the science fiction of our present may someday seem as pathetically misconceived as that of the past. So, too, will …
Technology Regulation By Default: Platforms, Privacy, And The Cfpb, Rory Van Loo
Technology Regulation By Default: Platforms, Privacy, And The Cfpb, Rory Van Loo
Faculty Scholarship
In the absence of a technology-focused regulator, diverse administrative agencies have been forced to develop regulatory models for governing their sphere of the data economy. These largely uncoordinated efforts offer a laboratory of regulatory experimentation on governance architecture. This symposium essay explores what the Consumer Financial Protection Bureau (CFPB) has done in its first several years to regulate financial technology (“fintech”), in the context of broader technology-related concerns identified in the literature. It begins with a survey of what the CFPB has undertaken using more traditional administrative agency tools—enforcement and rulemaking—in areas such as privacy, consumer control over data, and …
Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg
Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg
Faculty Scholarship
To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …
All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green
All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green
Faculty Scholarship
In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …
Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li
Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li
Faculty Scholarship
On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …
Body Cameras And The Path To Redeem Privacy Law, Woodrow Hartzog
Body Cameras And The Path To Redeem Privacy Law, Woodrow Hartzog
Faculty Scholarship
From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many …
How Computer Automation Affects Occupations: Technology, Jobs, And Skills, James Bessen
How Computer Automation Affects Occupations: Technology, Jobs, And Skills, James Bessen
Faculty Scholarship
This paper investigates basic relationships between technology and occupations. Building a general occupational model, I look at detailed occupations since 1980 to explore whether computers are related to job losses or other sources of wage inequality. Occupations that use computers grow faster, not slower. This is true even for highly routine and mid-wage occupations. Estimates reject computers as a source of significant net technological unemployment or job polarization. But computerized occupations substitute for other occupations, shifting employment and requiring new skills. Because new skills are costly to learn, computer use is associated with substantially greater within-occupation wage inequality.
The Corporation As Courthouse, Rory Van Loo
The Corporation As Courthouse, Rory Van Loo
Faculty Scholarship
Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system of private actors. These actors include ratings websites that mete out reputational sanctions. The system also includes other corporations linked to the transaction, such as when American Express adjudicates a contested sale between a shopper and Home Depot. This vast private order offers promise to …
Spying Inc., Danielle K. Citron
Spying Inc., Danielle K. Citron
Faculty Scholarship
The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s calls, texts, snap chats, photos, calendar updates, and movements. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners.
Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, enforced. …