Law Commons^™

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 …

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 …

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 …

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 …

Gauging The Acceptance Of Contact Tracing Technology: An Empirical Study Of Singapore Residents’ Concerns With Sharing Their Information And Willingness To Trust, Ee-Ing Ong, Wee Ling Loo

Research Collection Yong Pung How School Of Law

In response to the COVID-19 pandemic, governments began implementing various forms of contact tracing technology. Singapore’s implementation of its contact tracing technology, TraceTogether, however, was met with significant concern by its population, with regard to privacy and data security. This concern did not fit with the general perception that Singaporeans have a high level of trust in its government. We explore this disconnect, using responses to our survey (conducted pre-COVID-19) in which we asked participants about their level of concern with the government and business collecting certain categories of personal data. The results show that respondents had less concern with …

Persistent Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

Persistent surveillance technologies grant police vast new investigative capabilities. The technologies both monitor targeted areas and generate databases of searchable information about people, places, and patterns that can be connected and accessed for criminal prosecutions.

In the face of this growing police surveillance, courts have struggled to make sense of a fragmented Fourth Amendment doctrine. The Supreme Court has offered some clues that “digital may be different” when it comes to surveillance, but lower courts have been left struggling to apply old law to new technologies. Warrantless use of persistent surveillance technologies raises hard questions about when a “search” occurs …

Debunking The Myth That Police Body Cams Are Civil Rights Tool, Scott Skinner-Thompson

Publications

No abstract provided.

Telephone Pole Cameras Under Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.

These questions are complicated because Fourth Amendment law is complicated. This is especially the case today as Fourth Amendment law is in a transitional phase, caught between older and newer paradigms …

Smart Meters As A Catalyst For Privacy Law, Matthew Tokson

Utah Law Faculty Scholarship

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant …

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 …

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 …

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …

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 …

The Case Of The Nosy Neighbors, Johanna Gunawan, Woodrow Hartzog

Faculty Scholarship

Inspired by companies like Clearview AI, Nextdoor, and Amazon, this case study asks students to assume the role of a high-ranking ethics-focused employee at a (fictional) neighborhood-focused social media company. It involves challenging ethical questions around how social media services and surveillance tools are built and used, and the complicated relationship between companies, their users, and law enforcement authorities. Students should pay particular attention to the values implicated by certain design decisions, and the competing incentives for corporations that might complicate the picture for ethical decision making.

The Covid-19 Pandemic And The Technology Trust Gap, Johanna Gunawan, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Industry and government tried to use information technologies to respond to the COVID-19 pandemic, but using the internet as a tool for disease surveillance, public health messaging, and testing logistics turned out to be a disappointment. Why weren’t these efforts more effective? This Essay argues that industry and government efforts to leverage technology were doomed to fail because tech platforms have failed over the past few decades to make their tools trustworthy, and lawmakers have done little to hold these companies accountable. People cannot trust the interfaces they interact with, the devices they use, and the systems that power tech …

What Is Privacy? That’S The Wrong Question, Woodrow Hartzog

Faculty Scholarship

Privacy has never had a precise meaning. But in the early 1900s, the concept took on new life as a term of art in legal frameworks. The result has been a bit of a mess, as no singular definition has been adequate for all purposes. Daniel Solove, perhaps the most influential privacy scholar of our day, wrote at the turn of the millennium that privacy was “a concept in disarray.”

In this short essay reflecting upon Solove’s impact on the modern study of information privacy, I argue that the chaos and futility of competing conceptualizations of privacy is why Solove’s …

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, …

Inescapable Surveillance, Matthew Tokson

Utah Law Faculty Scholarship

Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.

In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot …

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

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Submission To The Justice And Electoral Committee On The Search And Surveillance Bill 2009, Samuel Beswick, William Fotherby

All Faculty Publications

This submission to the Justice and Electoral Select Committee of the New Zealand Parliament addresses the surveillance regime created by the Search and Surveillance Bill 2009.

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany Li

Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors are using new technologies, like heat sensing, and technologically-influenced programs, like contact tracing, alike in response, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the …

A New Compact For Sexual Privacy, Danielle K. Citron

Faculty Scholarship

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden.

Privacy law is failing us. Our …

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 …

The Normative Fourth Amendment, Matthew Tokson

Utah Law Faculty Scholarship

For decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those alternatives pose many of the same problems as the current standard.

This Article offers a new theoretical approach for determining the scope of the Fourth Amendment. It develops a normative model of Fourth Amendment searches, one that explicitly addresses the balance between law enforcement effectiveness and citizens’ interests inherent in …

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” …

The Ironic Privacy Act, Margaret Hu

Scholarly Articles

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act's reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly …