Law Commons^™

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 …

The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element of the internet’s business model.

Academics and policymakers have recently proposed a possible solution: require those entrusted with people’s data and online experiences to be loyal to those who trust them. But many have concerns about a duty of loyalty. What, …

The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post

All Faculty Scholarship

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …

Candidate Privacy, Rebecca Green

Faculty Publications

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

A Recent Renaissance In Privacy Law, Margot Kaminski

Publications

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.

Cyber Mobs, Disinformation, And Death Videos: The Internet As It Is (And As It Should Be), Danielle K. Citron

Faculty Scholarship

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

The Public Information Fallacy, Woodrow Hartzog

Faculty Scholarship

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” …

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

‘Relational Privacy’ & Tort, Stuart Hargreaves

William & Mary Journal of Race, Gender, and Social Justice

This Article argues that the current interpretation given to the four-part invasion of privacy framework by the courts is inadequate in the face of modern privacy challenges. In particular, it struggles with claims for privacy over public matters or other ‘non-secret’ matters that an individual may nonetheless have some ongoing privacy interest in. This Article suggests that this struggle is the result of the courts adopting a fixed, binary approach to privacy, which is itself grounded in a liberal-individualistic account of autonomy. While this may be a natural response to concerns about limiting the scope of the tort, it is …

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 …

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Newsroom: Logan On Drone Law, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Privacy As Trust: Sharing Personal Information In A Networked World, Ari Ezra Waldman

Articles & Chapters

This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.”

The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …

The Inalienable Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle Keats Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher’s strict liability standard as undermining economic development, American courts …

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle K. Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher's strict liability standard as undermining economic development, American courts and …

Small Hope Floats: How The Lower Courts Have Sunk The Right Of Privacy, Stephanie D. Taylor

West Virginia Law Review

No abstract provided.

Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn

Faculty Scholarship

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had …

The Power Of Private Facts, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Equity -- 1964 Tennessee Survey, W. W. Garrett

Vanderbilt Law Review

In 1956 in the case of Langford v. Vanderbilt University, the Tennessee Supreme Court recognized the existence of a common law right of privacy. The Court of Appeals, Western Division, in Kyritsis v. Vieron, now holds that injunction does not lie to protect a personal right. The suit arose in the chancery court of Shelby County. Complainant alleged he was pastor of the Saint George's Greek Orthodox Church affiliated with the Greek Orthodox Church of North America and Canada, and that defendant was pastor of the Church of the Annunciation affiliated with the Greek Orthodox Archdiocese of North and South …