Law Commons^™

Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

Publications

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …

Performative Privacy, Scott Skinner-Thompson

Publications

Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedom of association meaningful in practice.

This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many efforts to maintain privacy while in “public” are properly conceptualized as forms of performative, expressive resistance against an ever-pervasive surveillance society. …

Entrepreneurial Administration, Philip J. Weiser

Publications

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a …

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

Privacy And The Right To Record, Margot E. Kaminski

Publications

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s …

An Expressive Theory Of Privacy Intrusions, Craig Konnoth

Publications

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms "expressive."

Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by …