Privacy 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 …

Individuals As Gatekeepers Against Data Misuse, Ying Hu

Michigan Technology Law Review

This article makes a case for treating individual data subjects as gatekeepers against misuse of personal data. Imposing gatekeeper responsibility on individuals is most useful where (a) the primary wrongdoers engage in data misuse intentionally or recklessly; (b) misuse of personal data is likely to lead to serious harm; and (c) one or more individuals are able to detect and prevent data misuse at a reasonable cost.

As gatekeepers, individuals should have a legal duty to take reasonable measures to prevent data misuse where they are aware of facts indicating that the person seeking personal data from them is highly …

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

A Comparative Study Of Dark Patterns Across Mobile And Web Modalities, Johanna Gunawan, Amogh Pradeep, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Dark patterns are user interface elements that can influence a person's behavior against their intentions or best interests. Prior work identified these patterns in websites and mobile apps, but little is known about how the design of platforms might impact dark pattern manifestations and related human vulnerabilities. In this paper, we conduct a comparative study of mobile application, mobile browser, and web browser versions of 105 popular services to investigate variations in dark patterns across modalities. We perform manual tests, identify dark patterns in each service, and examine how they persist or differ by modality. Our findings show that while …

Deep Fakes: The Algorithms That Create And Detect Them And The National Security Risks They Pose, Nick Dunard

James Madison Undergraduate Research Journal (JMURJ)

The dissemination of deep fakes for nefarious purposes poses significant national security risks to the United States, requiring an urgent development of technologies to detect their use and strategies to mitigate their effects. Deep fakes are images and videos created by or with the assistance of AI algorithms in which a person’s likeness, actions, or words have been replaced by someone else’s to deceive an audience. Often created with the help of generative adversarial networks, deep fakes can be used to blackmail, harass, exploit, and intimidate individuals and businesses; in large-scale disinformation campaigns, they can incite political tensions around the …

Agriculture & Data Privacy: I Want A Hipaa(Potamus) For Christmas . . . Maybe, Jennifer Zwagerman

Texas A&M Law Review

Technology advancements make life, work, and play easier and more enjoyable in many ways. Technology issues are also the cause of many headaches and dreams of living out the copier destruction scene from the movie “Office Space.” Whether it be user error or technological error, one key technology issue on many minds right now is how all the data produced every second of every day, in hundreds of different ways, is used by those that collect it.

How much data are we talking about here? In 2018, the tech company Domo estimated that by 2020 “1.7 MB of data will …

The Genetic Panopticon: Genetic Genealogy Searches And The Fourth Amendment, Genevieve Carter

Northwestern Journal of Technology and Intellectual Property

As consumer DNA testing gains widespread popularity, so has law enforcement’s interest in leveraging genetic databases for criminal investigations. Consumer DNA testing products like 23andMe and Ancestry allow private individuals access to their genetic data on private databases. However, once coded, genetic data is free to be downloaded by users and uploaded to public databases. Police identify suspects by uploading cold case DNA to public genetic databases and find familial matches. If they identify a familial match, they narrow the field of suspects using traditional methods of investigation, which often includes extracting suspect DNA from a piece of their abandoned …

Data Autonomy, Cesare Fracassi, William Magnuson

Faculty Scholarship

In recent years, “data privacy” has vaulted to the forefront of public attention. Scholars, policymakers, and the media have, nearly in unison, decried the lack of data privacy in the modern world. In response, they have put forth various proposals to remedy the situation, from the imposition of fiduciary obligations on technology platforms to the creation of rights to be forgotten for individuals. All these proposals, however, share one essential assumption: we must raise greater protective barriers around data. As a scholar of corporate finance and a scholar of corporate law, respectively, we find this assumption problematic. Data, after all, …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Surveillance Capitalism, William Hamilton

Journal of Technology Law & Policy

In 2019, Harvard Business School Professor Shoshana Zuboff published The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power.

What I hope to accomplish in this short presentation is to unpack some of the salient themes of this interesting, important book. I believe her book will lend context and urgency to this conference. Her book is a combination of excellent research, journalism, and scholarship. It is also a call, a plea, a supplication. Thus, the sub-title, The Fight for a Human Future at the New Frontier of Power, presages an unrelenting critical …

Defending Face-Recognition Technology (And Defending Against It), Henry H. Perritt Jr.

Journal of Technology Law & Policy

This Article looks beneath the surface of attacks on face-recognition technology and explains how it can be an exceptionally useful tool for law enforcement, complementing traditional forensic evidence such as fingerprints and DNA. It punctures myths about the technology and explains how existing rules of criminal procedure, developed for other kinds of forensic evidence, are readily adaptable to face-recognition. It opposes across-the-board restrictions on use of face-recognition technologies and advocates a more sophisticated set of guarantees of defendant access to the information necessary to probe reliability of computerized face-matches. Defendants must have reasonable access to the details of the technology …

Chinese Technology Platforms Operating In The United States: Assessing The Threat (Originally Published As A Joint Report Of The National Security, Technology, And Law Working Group At The Hoover Institution At Stanford University And The Tech, Law & Security Program At American University Washington College Of Law), Gary Corn, Jennifer Daskal, Jack Goldsmith, Chris Inglis, Paul Rosenzweig, Samm Sacks, Bruce Schneier, Alex Stamos, Vincent Stewart

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Protection Of And Access To Relevant Data: General Issues, Kung-Chung Liu, Shufeng Zheng

Research Collection Yong Pung How School Of Law

This chapter discusses the protection of relevant data and issues that might block access to such data. For the purpose of this chapter there are at least three kinds of data, data specifically generated for the purpose of AI the big data, and copyright protected data, each having its unique issues concerning protection and access. This chapter comes to the conclusions: Data specifically generated for AI should qualify as works worthy of copyright protection as compilations. If such data are public sector information, measures that may facilitate the widest re-uses of public data should be taken. If such data are …

#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl

Scholarly Articles

With limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.

Moreover, the use of social media in tax enforcement may pose a particular harm to an especially vulnerable population: low-income …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Masthead, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Seeing (Platforms) Like A State: Digital Legibility And Lessons For Platform Governance, Neil Chilson

Catholic University Journal of Law and Technology

The growing backlash against Big Tech companies is a symptom of digital technology increasing the world’s legibility. James C. Scott’s book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, explores how past governments responded to increased legibility – for good and for ill. This article shows how Scott’s historical lessons can guide governments and tech platforms as they seek to improve the human condition online.

Hybrid Ip Rights For Software, Apis, And Guis: Understanding Copyright's Paradigm Shift, Howard Skaist

Catholic University Journal of Law and Technology

The non-literal scope of protection for software is intricate legally and is intricate technical. Thus, despite literally decades of court decisions and a mountain of legal scholar written on the subject in that time, it appears that there is still no consistent agreement about it, as evidenced by the Google v. Oracle which has percolated in the courts for nearly a decade and is now being heard by the US Supreme Court (oral argument was on October 7, 2020). However, the thesis of this article that a legal construct is capable of being formulated that is analytically consistent and that …

Table Of Contents, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.

Reasonable Expectations Of Privacy In An Era Of Drones And Deepfakes: Expanding The Supreme Court Of Canada’S Decision In R V Jarvis, Suzie Dunn, Kristen Mj Thomasen

Articles, Book Chapters, & Popular Press

Perpetrators of Technology-Facilitated gender-based violence are taking advantage of increasingly automated and sophisticated privacy-invasive tools to carry out their abuse. Whether this be monitoring movements through stalker-ware, using drones to non-consensually film or harass, or manipulating and distributing intimate images online such as deep-fakes and creepshots, invasions of privacy have become a significant form of gender-based violence. Accordingly, our normative and legal concepts of privacy must evolve to counter the harms arising from this misuse of new technology. Canada’s Supreme Court recently addressed Technology-Facilitated violations of privacy in the context of voyeurism in R v Jarvis (2019). The discussion of …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

The Right To Benefit From Big Data As A Public Resource, Mary D. Fan

Articles

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

Articles

This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast

Brooklyn Journal of International Law

Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …

The Ftc And Ai Governance: A Regulatory Proposal, Michael Spiro

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Law Enforcement’S Use Of Facial Recognition Software In United States Cities, Samantha Jean Wunschel

Honors Program Theses and Projects

Facial recognition software is something we use every day, whether it’s a suggested tag on our Facebook post or a faster way to unlock our phones. As technology becomes increasingly pervasive in our lives, law enforcement has adapted to utilize the new tools available in accessory to their investigations and the legal process.