Law Commons^™

Uncertain Terms, Leah R. Fowler, Jim Hawkins, Jessica L. Roberts

Notre Dame Law Review

Health apps collect massive amounts of sensitive consumer data, including information about users’ reproductive lives, mental health, and genetics. As a result, consumers in this industry may shop for privacy terms when they select a product. Yet our research reveals that many digital health tech companies reserve the right to unilaterally amend their terms of service and their privacy policies. This ability to make one-sided changes undermines the market for privacy, leaving users vulnerable. Unfortunately, the current law generally tolerates unilateral amendments, despite fairness and efficiency concerns. We therefore propose legislative, regulatory, and judicial solutions to better protect consumers of …

Outsourcing Privacy, Ari Ezra Waldman

Notre Dame Law Review Reflection

An underappreciated part of the narrative of privacy managerialism—and the focus of this Essay—is the information industry’s increasing tendency to outsource privacy compliance responsibilities to technology vendors. In the last three years alone, the International Association of Privacy Professionals (IAPP) has identified more than 250 companies in the privacy technology vendor market. These companies market their products as tools to help companies comply with new privacy laws like the General Data Protection Regulation (GDPR), with consent orders from the Federal Trade Commission (FTC), and with other privacy rules from around the world. They do so by building compliance templates, pre-completed …

Introduction, Mark P. Mckenna

Notre Dame Law Review Reflection

Julie Cohen’s Between Truth and Power is, as Orly Lobel writes, a “dazzling tour de force” that “asks us to consider the new ways powerful actors extract valuable resources for gain and dominance.” As she has done so frequently, Cohen takes an incredibly complex story and weaves together a comprehensive narrative that changes the entire framing of legal questions. Agree or disagree with her diagnoses, no one who seriously engages this book will ever think about regulation in the information economy the same way.

In January 2020 (seemingly a lifetime ago, given what 2020 would bring), we gathered leading thinkers …

Biopolitical Opportunities: Between Datafication And Governance, Orly Lobel

Notre Dame Law Review Reflection

Julie Cohen’s dazzling tour de force Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” I read Between Truth and Power as not only a compelling account of the contemporary transformations of law …

The Impact Of Schrems Ii: Next Steps For U.S. Data Privacy Law, Andraya Flor

Notre Dame Law Review

Schrems II invalidated Privacy Shield because the court found that it did not provide an “essentially equivalent” level of protection compared to the guarantees of the GDPR. The National Security Agency (NSA) operated surveillance programs that had the potential to infringe on the rights of EU subjects, and there was a lack of oversight and effective judicial remedies to protect rights of EU data subjects, which undermined Privacy Shield as a mechanism for data transfers. This Note sets aside the surveillance and national security issue, which would require resolution through a shift in overall U.S. national security law, and instead …