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Full-Text Articles in Law

Contracting For Algorithmic Accountability, Cary Coglianese, Erik Lampmann Jan 2021

Contracting For Algorithmic Accountability, Cary Coglianese, Erik Lampmann

Faculty Scholarship at Penn Law

As local, state, and federal governments increase their reliance on artificial intelligence (AI) decision-making tools designed and operated by private contractors, so too do public concerns increase over the accountability and transparency of such AI tools. But current calls to respond to these concerns by banning governments from using AI will only deny society the benefits that prudent use of such technology can provide. In this Article, we argue that government agencies should pursue a more nuanced and effective approach to governing the governmental use of AI by structuring their procurement contracts for AI tools and services in ways that ...


Compliance Management Systems: Do They Make A Difference?, Cary Coglianese, Jennifer Nash Jan 2021

Compliance Management Systems: Do They Make A Difference?, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

Regulatory compliance is vital for promoting the public values served by regulation. Yet many businesses remain out of compliance with some of the regulations that apply to them—presenting not only possible dangers to the public but also exposing themselves to potentially significant liability risk. Compliance management systems (CMSs) may help reduce the likelihood of noncompliance. In recent years, managers have begun using CMSs in an effort to address compliance issues in a variety of domains: environment, workplace health and safety, finance, health care, and aviation, among others. CMSs establish systematic, checklist-like processes by which managers seek to improve their ...


Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy Dec 2020

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Faculty Scholarship at Penn Law

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to ...


The First Amendment And The Right(S) Of Publicity, Jennifer Rothman, Robert C. Post Oct 2020

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

Faculty Scholarship at Penn Law

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 ...


Privative Copyright, Shyamkrishna Balganesh Jan 2020

Privative Copyright, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright ...


Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai Jan 2020

Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai

Faculty Scholarship at Penn Law

Policymakers in the United States have just begun to address regulation of artificial intelligence technologies in recent years, gaining momentum through calls for additional research funding, piece-meal guidance, proposals, and legislation at all levels of government. This Article provides an overview of high-level federal initiatives for general artificial intelligence (AI) applications set forth by the U.S. president and responding agencies, early indications from the incoming Biden Administration, targeted federal initiatives for sector-specific AI applications, pending federal legislative proposals, and state and local initiatives. The regulation of the algorithmic ecosystem will continue to evolve as the United States continues to ...


The Right Of Publicity's Intellectual Property Turn, Jennifer Rothman Apr 2019

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

Faculty Scholarship at Penn Law

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 ...


Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick Jan 2019

Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick

Faculty Scholarship at Penn Law

Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.

This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews ...


The Privacy Interest In Property, Abraham Bell, Gideon Parchomovsky Jan 2019

The Privacy Interest In Property, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Once upon a time, there existed a clear nexus between property and privacy. Protection of property rights was an important safeguard against intrusions of the privacy interests of owners both by the government and by private actors. Gradually, however, the symbiotic relationship between privacy and property has been forgotten by scholars and policymakers and fallen into oblivion.

In this Article, we seek to restore the centrality of privacy in property law by making two novel contributions – one descriptive and one normative. Descriptively, we demonstrate that concerns for privacy inform, at times implicitly, many important property doctrines. Indeed, we show that ...


The Ecology Of Transparency Reloaded, Seth F. Kreimer Jan 2018

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship at Penn Law

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued ...


Relational Contracts Of Adhesion, David A. Hoffman Jan 2018

Relational Contracts Of Adhesion, David A. Hoffman

Faculty Scholarship at Penn Law

Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral ...


The Right Of Publicity: Privacy Reimagined For New York?, Jennifer Rothman Jan 2018

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

Faculty Scholarship at Penn Law

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 ...


When Whispers Enter The Cloud, Heidi H. Liu Jan 2018

When Whispers Enter The Cloud, Heidi H. Liu

Faculty Scholarship at Penn Law

With increased awareness of workplace harassment in recent years, the idea of enhanced reporting around sexual misconduct has gained traction. As a result, several technologies – from smartphone apps to well-publicized services – have been introduced with the goals of preventing, enabling reports of, and even predicting sexual misconduct at work, school and in public. But to what extent are these technologies secure and accessible to survivors? This Note documents the existing resources and proposes a framework focusing on privacy and participation for evaluating these tools intended to benefit survivors.


Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen Dec 2016

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

Faculty Scholarship at Penn Law

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 ...


Laird V. Tatum And Article Iii Standing In Surveillance Cases, Jeffrey L. Vagle Jan 2016

Laird V. Tatum And Article Iii Standing In Surveillance Cases, Jeffrey L. Vagle

Faculty Scholarship at Penn Law

Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.


Neuroprediction: New Technology, Old Problems, Stephen J. Morse Jan 2015

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

Faculty Scholarship at Penn Law

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.


Empirical Analysis Of Data Breach Litigation, Sasha Romanosky, David A. Hoffman, Alessandro Acquisti Jan 2014

Empirical Analysis Of Data Breach Litigation, Sasha Romanosky, David A. Hoffman, Alessandro Acquisti

Faculty Scholarship at Penn Law

In recent years, many lawsuits have been filed by individuals seeking legal redress for harms caused by the loss or theft of their personal information. However, very little is known about the drivers, mechanics, and outcomes of those lawsuits, making it difficult to assess the effectiveness of litigation at balancing organizations’ usage of personal data with individual privacy rights. Using a unique and manually-collected database, we analyze court dockets for over 230 federal data breach lawsuits from 2000 to 2010. We investigate two questions: Which data breaches are being litigated, and which data breach lawsuits are settling. Our results suggest ...


A Corporate Right To Privacy, Elizabeth Pollman Jan 2014

A Corporate Right To Privacy, Elizabeth Pollman

Faculty Scholarship at Penn Law

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on this ...


Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo Jan 2014

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

Faculty Scholarship at Penn Law

Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step ...


Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player Jan 2014

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Faculty Scholarship at Penn Law

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges ...


Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell Jan 2013

Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell

Faculty Scholarship at Penn Law

Does genetic information warrant special legal protection, and if so how should it be protected? This essay examines the most recent (and indeed only) significant effort by the US government to prohibit genetic discrimination, the Genetic Information Nondiscrimination Act (GINA). We argue that the legislation is unlikely to have the positive impact sought by advocates of genetic privacy and proponents of biobanks. In part, GINA disappoints because it does too little. Hailed by its promoters as “the first civil rights act of the 21st century,” GINA’s reach is in fact quite modest and its grasp even more so ...


An Ethical Duty To Protect One’S Own Information Privacy?, Anita L. Allen Jan 2013

An Ethical Duty To Protect One’S Own Information Privacy?, Anita L. Allen

Faculty Scholarship at Penn Law

People freely disclose vast quantities of personal and personally identifiable information. The central question of this Meador Lecture in Morality is whether they have a moral (or ethical) obligation (or duty) to withhold information about themselves or otherwise to protect information about themselves from disclosure. Moreover, could protecting one’s own information privacy be called for by important moral virtues, as well as obligations or duties? Safeguarding others’ privacy is widely understood to be a responsibility of government, business, and individuals. The “virtue” of fairness and the “duty” or “obligation” of respect for persons arguably ground other-regarding responsibilities of confidentiality ...


Privacy Law: Positive Theory And Normative Practice, Anita L. Allen Jan 2013

Privacy Law: Positive Theory And Normative Practice, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

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

Faculty Scholarship at Penn Law

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 a ...


The Inalienable Right Of Publicity, Jennifer Rothman Nov 2012

The Inalienable Right Of Publicity, Jennifer Rothman

Faculty Scholarship at Penn Law

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 ...


First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen Mar 2012

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen Jan 2012

What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Facebook Fallacies, Geoffrey C. Hazard Jr. Jan 2012

Facebook Fallacies, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Cloud Computing: Architectural And Policy Implications, Christopher S. Yoo Apr 2011

Cloud Computing: Architectural And Policy Implications, Christopher S. Yoo

Faculty Scholarship at Penn Law

Cloud computing has emerged as perhaps the hottest development in information technology. Despite all of the attention that it has garnered, existing analyses focus almost exclusively on the issues that surround data privacy without exploring cloud computing’s architectural and policy implications. This article offers an initial exploratory analysis in that direction. It begins by introducing key cloud computing concepts, such as service-oriented architectures, thin clients, and virtualization, and discusses the leading delivery models and deployment strategies that are being pursued by cloud computing providers. It next analyzes the economics of cloud computing in terms of reducing costs, transforming capital ...


Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts Apr 2011

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

Faculty Scholarship at Penn Law

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the ...