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Full-Text Articles in Law
Rethinking Privacy, William H. Simon
Rethinking Privacy, William H. Simon
Faculty Scholarship
Anxiety about surveillance and data mining has led many to embrace implausibly expansive and rigid conceptions of privacy. The premises of some current privacy arguments do not fit well with the broader political commitments of those who make them. In particular, liberals seem to have lost touch with the reservations about privacy expressed in the social criticism of some decades ago. They seem unable to imagine that preoccupation with privacy might amount to a “pursuit of loneliness” or how “eyes on the street” might have reassuring connotations. Without denying the importance of the effort to define and secure privacy values, …
Governing, Exchanging, Securing: Big Data And The Production Of Digital Knowledge, Bernard E. Harcourt
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, …
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Keats Citron, David C. Gray
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Keats Citron, David C. Gray
Faculty Scholarship
In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …
Tolls On The Information Superhighway: Entitlement Defaults For Clickstream Data, Lee B. Kovarsky
Tolls On The Information Superhighway: Entitlement Defaults For Clickstream Data, Lee B. Kovarsky
Faculty Scholarship
This paper addresses the collection of "clickstream data," and sets forth a theory about the legal rules that should govern it. At the outset, I propose a typology for categorizing privacy invasions. A given state of informational privacy may be represented by: the observed behavior, the collecting agent, and the searching agent. Using this typology, I identify the specific sources of concern about collection of clickstream data. Then, based on expected levels of utility and expected transaction costs of "flipping" to a different rule, I argue for a particular set of privacy defaults for data mining.