Law Commons^™

The Broader Lessons Of Privacy Law, Salome Viljoen

Articles

This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

“Can I Have It Non-Personalised?” An Empirical Investigation Of Consumer Willingness To Share Data For Personalized Services And Ads, Monika Leszczynska, Daria Baltag

Faculty Scholarship

European regulators, courts, and scholars are currently debating the legality of data processing for personalization purposes. Should businesses require separate consent for processing user data for personalized advertising, especially when offering free services reliant on such ads for revenue? Or is general consent for the contract enough, given personalized advertising’s role in fulfilling contractual obligations? This study investigates whether these legal distinctions reflect differences in people’s willingness to share data with businesses for personalization. Are consumers less willing to share their data for personalized advertising than for personalized services that they clearly contracted for? Does that change if the service …

Children Seen But Not Heard, Stacey B. Steinberg

UF Law Faculty Publications

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children’s upbringing with few exceptions. The principle governing this norm is that parents know best and will use their better knowledge to protect their children’s welfare.

The COVID-19 pandemic, public school rules, and children’s privacy laws offer modern examples of regulations in which the interests of parents and children may not align. Minors may want access to vaccines, despite a parent’s refusal to sign a consent form. Minors may want to talk to their …

On The Human Right To Healthy Menstruation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This short essay introduces the Bellagio Declaration on the Human Right to Healthy Menstruation, a statement signed by an interdisciplinary group of academics, artists, policymakers, clinicians, and practitioners in 2024. The Declaration frames the human right to healthy menstruation as including (1) non-discrimination on the basis of menstruation; (2) dignity in all matters related to menstruation; (3) access to facilities, resources, and supplies that facilitate the management of menstruation in a manner that is affordable and safe and that fosters a clean, healthy, and sustainable environment; (4) lifelong access to timely and medically accurate information about all aspects of menstruation; …

Content Moderation And The Least Cost Avoider, Paul Rosenzweig

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Distinguishing Privacy Law: A Critique Of Privacy As Social Taxonomy, María P. Angel, Ryan Calo

Articles

What distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic …

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 …

Valuing Social Data, Amanda Parsons, Salome Viljoen

Publications

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 …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

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 …

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 …

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 …

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 …

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 …

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

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 …

The Great Scrape: The Clash Between Scraping And Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping” – the automated extraction of large amounts of data from the internet. A great deal of scraped data is about people. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archival, and meaningful scientific research, scraping for AI can also be objectionable or even harmful to individuals and society.

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this Article, …

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. …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

A Trusted Framework For Cross-Border Data Flows, Alex Joel

Joint PIJIP/TLS Research Paper Series

The German Marshall Fund of the United States (GMF), in cooperation with the Tech, Law and Security Program (TLS) of the American University Washington College of Law, and with support from Microsoft, convened a Global Taskforce to Promote Trusted Sharing of Data comprising experts from civil society, academia, and industry to submit proposals for harmonizing approaches to global data use and sharing. Former US Ambassador to the Organisation for Economic Co-operation and Development (OECD) and GMF Distinguished Fellow Karen Kornbluh and Microsoft Chief Privacy Officer and Corporate Vice President Julie Brill co-chaired the taskforce; TLS Senior Project Director Alex Joel …

Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …

National Telecommunications And Information Administration: Comments From Researchers At Boston University And The University Of Chicago, Ran Canetti, Aloni Cohen, Chris Conley, Mark Crovella, Stacey Dogan, Marco Gaboardi, Woodrow Hartzog, Rory Van Loo, Christopher Robertson, Katharine B. Silbaugh

Faculty Scholarship

These comments were composed by an interdisciplinary group of legal, computer science, and data science faculty and researchers at Boston University and the University of Chicago. This group collaborates on research projects that grapple with the legal, policy, and ethical implications of the use of algorithms and digital innovation in general, and more specifically regarding the use of online platforms, machine learning algorithms for classification, prediction, and decision making, and generative AI. Specific areas of expertise include the functionality and impact of recommendation systems; the development of Privacy Enhancing Technologies (PETs) and their relationship to privacy and data security laws; …

Femtechnodystopia, Leah R. Fowler, Michael Ulrich

Faculty Scholarship

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral …

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

A Game Theoretic Approach To Balance Privacy Risks And Familial Benefits, Ellen W. Clayton, Jia Guo, Murat Kantarcioglu, Et Al.

Vanderbilt Law School Faculty Publications

As recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how …

Confused About Copyright?, Sara Anne Hook

Graduate Scholarship and Professional Work

No abstract provided.

Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Internet-of-Things (IoT) devices are ubiquitous, but little attention has been paid to how they may incorporate dark patterns despite consumer protections and privacy concerns arising from their unique access to intimate spaces and always-on capabilities. This paper conducts a systematic investigation of dark patterns in 57 popular, diverse smart home devices. We update manual interaction and annotation methods for the IoT context, then analyze dark pattern frequency across device types, manufacturers, and interaction modalities. We find that dark patterns are pervasive in IoT experiences, but manifest in diverse ways across device traits. Speakers, doorbells, and camera devices contain the most …

Who Owns Data? Constitutional Division In Cyberspace, Dongsheng Zang

Articles

Privacy emerged as a concern as soon as the internet became commercial. In early 1995, Lawrence Lessig warned that the internet, though giving us extraordinary potential, was “not designed to protect individuals against this extraordinary potential for others to abuse.” The same technology can “destroy the very essence of what now defines individuality.” Lessig urged that “a constitutional balance will have to be drawn between these increasingly important interests in privacy, and the competing interest in collective security.” Lessig envisioned that creating property rights in data would help individuals by giving them control of their data. As utopian as property …