Law Commons^™

Justice David Hackett Souter And The Right To Privacy, Scott P. Johnson

Mitchell Hamline Law Review

No abstract provided.

Cyberflashing: Exposing Oklahoma’S Legal Loophole, Sara Wray

Oklahoma Law Review

No abstract provided.

Privacy Policy Indeterminacy, Christopher G. Bradley

Connecticut Law Review

Despite being subjected to decades of sharp criticism, privacy policies published by companies remain a linchpin of privacy regulation. Representations in these policies provide the main measure against which consumer privacy can be judged. Policies are rarely read by consumers. Instead, these policies are interpreted by company decision makers tasked with interpreting whether a proposed course of action is consistent with stated policies as well as underlying privacy law. To be effective, policies must constrain use of consumer data even when they are given a company-friendly reading.

Experimental evidence on the interpretation of privacy policies provides no grounds for encouragement …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Table Of Contents

Catholic University Journal of Law and Technology

No abstract provided.

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

Articles

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

China Data Flows And Power In The Era Of Chinese Big Tech, W. Gregory Voss, Emmanuel Pernot-Leplay

Northwestern Journal of International Law & Business

Personal data have great economic interest today and their possession and control are the object of geopolitics, leading to their regulation by means that vary dependent on the strategic objectives of the jurisdiction considered. This study fills a gap in the literature in this area by analyzing holistically the regulation of personal data flows both into and from China, the world’s second largest economy. In doing so, it focuses on laws and regulations of three major power blocs: the United States, the European Union, and China, seen within the framework of geopolitics, and considering the rise of Chinese big tech. …

The Trade Origins Of Privacy Law, Anupam Chander

Georgetown Law Faculty Publications and Other Works

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Unavoidability In U.S. Privacy Law, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Why is U.S. privacy law structured the way it is, with a series of sectoral laws rather than a cross-sectoral law or laws? Why does U.S. privacy law protect information shared in certain contexts—such as information shared with an attorney, a healthcare provider, or a financial provider—rather than particular types of information? One possibility is that sectoral laws apply to contexts in which people typically share highly “sensitive” information containing intimate secrets or with the potential to harm them financially or psychologically.

But this Article argues that there is something else at play—that in fact, an under-discussed and underappreciated factor …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

The Trade Origins Of Privacy Law, Anupam Chander

Indiana Law Journal

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Masthead

Catholic University Journal of Law and Technology

No abstract provided.

Getting Real About Protecting Privacy, Scott Skinner-Thompson

Publications

No abstract provided.

Valuing Social Data, Amanda Parsons, Salome Viljoen

Articles

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

The Rights Of Donor-Conceived Persons In Colorado: America's First Foray Into Abolishing Anonymous Gamete Donation, Madeline Ash

Indiana Law Journal

On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United …

Against Engagement, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

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 …

Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones

Publications

Artificial Intelligence (AI) systems such as ChatGPT can now produce convincingly human speech, at scale. It is tempting to ask whether such AI-generated content “disrupts” the law. That, we claim, is the wrong question. It characterizes the law as inherently reactive, rather than proactive, and fails to reveal how what may look like “disruption” in one area of the law is business as usual in another. We challenge the prevailing notion that technology inherently disrupts law, proposing instead that law and technology co-construct each other in a dynamic interplay reflective of societal priorities and political power. This Essay instead deploys …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

University of Colorado Law Review

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different …

The Implications Of Artificial Intelligence In The Criminal Justice System, Natalie Garay

Honors Undergraduate Theses

This thesis focuses on artificial intelligence's recent implications on the criminal justice system regarding its admissibility as evidence in civil and criminal cases. One of the main concerns surrounding artificial intelligence is determining the validity of AI application; application refers to the accuracy "AI measures, classifies, or predicts what it is designed to" (Article: Artificial Intelligence as Evidence by Paul W. Grimm, Maura R. Grossman & Gordon V.Cormack.(https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1349&context=njtip). Privacy law will also be analyzed in this analysis. Is evidence recorded without the individual's consent or knowledge acceptable in determining an individual's guilt? This analysis will primarily focus on …

Do Ais Dream Of Electric Boards?, Robert J. Rhee

UF Law Faculty Publications

When artificial intelligence (“AI”) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer AI with the status of legal personhood, as it did with the personhood of traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such …

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 …

Two Ai Truths And A Lie, Woodrow Hartzog

Faculty Scholarship

Industry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good.

Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. …