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Full-Text Articles in Law
Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake
Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake
Scholarship@WashULaw
This Article is an explanation of some of the key features of American privacy law for a general audience. In particular, it tries to explain American privacy law against the critique that because the US currently lacks a European-style privacy law, the United States lacks much in the way of privacy law. We argue that the lack of a European-style data protection law in the United States is not the end of the analysis. This article therefore offers a basic roadmap to American privacy law for the uninitiated. In order to understand American privacy, we believe that it is important …
The Gdpr As Privacy Pretext And The Problem Of Co-Opting Privacy, Neil M. Richards
The Gdpr As Privacy Pretext And The Problem Of Co-Opting Privacy, Neil M. Richards
Scholarship@WashULaw
Privacy and data protection law's expansion brings with it opportunities for mischief as privacy rules are used pretextually to serve other ends. This Essay examines the problem of such co-option of privacy using a case study of lawsuits in which defendants seek to use the EU’s General Data Protection Regulation (“GDPR”) to frustrate ordinary civil discovery. In a series of cases, European civil defendants have argued that the GDPR requires them to redact all names from otherwise valid discovery requests for relevant evidence produced under a protective order, thereby turning the GDPR from a rule designed to protect the fundamental …
A General Defense Of Information Fiduciaries, Andrew F. Tuch
A General Defense Of Information Fiduciaries, Andrew F. Tuch
Scholarship@WashULaw
Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties of care, confidentiality, and loyalty on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information fiduciary concept flies in the face of fundamental corporate law principles that require firms to prioritize shareholder interests over those of users. Second, it is said that the overwhelming self-interest of digital companies makes fiduciary loyalty impossible as a …
The Third-Party Doctrine And The Future Of The Cloud, Neil M. Richards
The Third-Party Doctrine And The Future Of The Cloud, Neil M. Richards
Scholarship@WashULaw
When the government seeks electronic documents held in the cloud, what legal standard should apply? This simple question raises fundamental questions about the future of our civil liberties in the digital world. In a series of cases, government lawyers have argued that information shared with digital intermediaries—including emails and cloud-stored documents—can be seized without a warrant. Their argument rests upon a controversial Fourth Amendment principle known as the “Third-Party Doctrine,” which maintains that information shared even with trusted “third parties” loses a reasonable expectation of privacy under the Fourth Amendment, and with it, the protection of the warrant requirement. Criminal …
Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards
Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards
Scholarship@WashULaw
Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont …
Digital Laws Evolve, Neil M. Richards
Digital Laws Evolve, Neil M. Richards
Scholarship@WashULaw
The essay from Wired Magazine (UK)'s special volume, "The Wired World in 2015," argues that although digital laws have lagged behind technological advances, they are starting to catch up, and this trend will continue in 2015. When it comes to privacy and technology, the law is catching up all over the world.
Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove
Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove
Scholarship@WashULaw
This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy …
Privacy And The Limits Of History, Neil M. Richards
Privacy And The Limits Of History, Neil M. Richards
Scholarship@WashULaw
A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …