Law Commons^™

Governing Smart Cities As Knowledge Commons - Introduction, Chapter 1 & Conclusion, Brett M. Frischmann, Michael J. Madison, Madelyn Sanfilippo

Book Chapters

Smart city technology has its value and its place; it isn’t automatically or universally harmful. Urban challenges and opportunities addressed via smart technology demand systematic study, examining general patterns and local variations as smart city practices unfold around the world. Smart cities are complex blends of community governance institutions, social dilemmas that cities face, and dynamic relationships among information and data, technology, and human lives. Some of those blends are more typical and common. Some are more nuanced in specific contexts. This volume uses the Governing Knowledge Commons (GKC) framework to sort out relevant and important distinctions. The framework grounds …

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 …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

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 …

Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson

Publications

This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …

Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Ethics, Ai, Mass Data And Pandemic Challenges: Responsible Data Use And Infrastructure Application For Surveillance And Pre-Emptive Tracing Post-Crisis, Mark Findlay, Jia Yuan Loke, Nydia Remolina Leon, Yum Yin, Benjamin (Tan Renyan) Tham

Research Collection Yong Pung How School Of Law

As the COVID-19 health pandemic rages governments and private companies across the globe are utilising AI-assisted surveillance, reporting, mapping and tracing technologies with the intention of slowing the spread of the virus. These technologies have the capacity to amass personal data and share for community control and citizen safety motivations that empower state agencies and inveigle citizen co-operation which could only be imagined outside such times of real and present danger. While not cavilling with the short-term necessity for these technologies and the data they control, process and share in the health regulation mission, this paper argues that this infrastructure …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Iran, Diane M. Zorri

Publications

Internet access in Iran is characterized by strong censorship, limited access, surveillance, and widespread state-sanctioned propaganda. The regime in Tehran views internet freedom as a critical threat to its national security (Henry, Pettyjohn, and York 2014). Using an index of variables such as obstacles to access, limits on content, and violations of user rights, the nongovernmental organization Freedom House rates Iran’s internet access as “not free” (Freedom House 2018). On a scale of zero to one hundred, where zero is “free” and one hundred is “not free,” Freedom House scores Iran at an eighty-five, making it the least free nation …

Transparency After Carpenter, Hannah Bloch-Wehba

Faculty Scholarship

This brief invited response to Professor Matthew Tokson’s Foulston-Siefkin lecture on the Supreme Court's decision in Carpenter v. United States makes two contributions. First, I highlight the social, political, and economic factors at play in the Carpenter decision. The Carpenter Court recognized, in particular, that digital surveillance implicates the rights of more than just criminal suspects: it poses unique and unappreciated threats to public governance of policing. The decision, I argue, reflects longstanding preoccupations in Fourth Amendment decisions with protecting the “public” — particularly innocent third parties — from intrusive and baseless investigations. In so doing, I situate Professor Tokson’s …

Hacking For Intelligence Collection In The Fight Against Terrorism: Israeli, Comparative, And International Perspectives, Asaf Lubin

Articles by Maurer Faculty

תקציר בעברית: הניסיון של המחוקק הישראלי להביא להסדרה מפורשת של סמכויות השב״כ במרחב הקיברנטי משקף מגמה רחבה יותר הניכרת בעולם לעיגון בחקיקה ראשית של הוראות בדבר פעולות פצחנות מצד גופי ביון ומודיעין ורשויות אכיפת חוק למטרות איסוף מודיעין לשם סיכול עבירות חמורות, ובייחוד עבירות טרור אם בעבר היו פעולות מסוג אלה כפופות לנהלים פנימיים ומסווגים, הרי שהדרישה לשקיפות בעידן שלאחר גילויי אדוארד סנודן מחד והשימוש הנרחב בתקיפות מחשב לביצוע פעולות חיפוש וחקירה לסיכול טרור מאידך, מציפים כעת את הדרישה להסמכה מפורשת. במאמר זה אבקש למפות הן את השדה הטכנולוגי והן את השדה המשפטי בכל האמור בתקיפות מחשבים למטרות ריגול ומעקב. …

Newsroom: Cybersecurity: Obama's Conflicted Legacy 02-17-2017, Peter Margulies

Life of the Law School (1993- )

No abstract provided.

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

Articles

Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

All Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

By 2020 there will be billions of “things” connected through the “Internet of Things.” These smart devices built within our homes, cars, smartphones, clothing, and accessories present new possibilities for technological surveillance for law enforcement. This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This article addresses how a Fourth Amendment built on old-fashioned “effects” can address a new world when things are no longer just inactive, static objects, but objects that create and …

Keeping Pace: The U.S. Supreme Court And Evolving Technology, Brian Thomas

Politics Summer Fellows

Contemporary mainstream discussions of the Supreme Court are often qualified with the warning that the nine justices are out of touch with everyday American life, especially when it comes to the newest and most popular technologies. For instance, during oral argument for City of Ontario v. Quon, a 2010 case that dealt with sexting on government-issued devices, Chief Justice John Roberts famously asked what the difference was “between email and a pager,” and Justice Antonin Scalia wondered if the “spicy little conversations” held via text message could be printed and distributed. While these comments have garnered a great deal of …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

All Faculty Scholarship

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Self, Privacy, And Power: Is It All Over?, Richard Warner, Robert H. Sloan

All Faculty Scholarship

The realization of a multifaceted self is an ideal one strives to realize. One realizes such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself when others may collect and how they may use your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here: informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the …

Yale Symposium: Unpacking Nsa's Global Problem, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Of Relevance And Reform Under Section 215, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Fisc Query Preapproval: Intelligence Burden Or Bump In The Road?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Surveillance At The Source, David Thaw

Articles

Contemporary discussion concerning surveillance focuses predominantly on government activity. These discussions are important for a variety of reasons, but generally ignore a critical aspect of the surveillance-harm calculus – the source from which government entities derive the information they use. The source of surveillance data is the information "gathering" activity itself, which is where harms like "chilling" of speech and behavior begin.

Unlike the days where satellite imaging, communications intercepts, and other forms of information gathering were limited to advanced law enforcement, military, and intelligence activities, private corporations now play a dominant role in the collection of information about individuals' …

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, …

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, …