Privacy Law Commons^™

Impacted Stakeholder Participation In Ai And Data Governance, Margot Kaminski, Gianclaudio Malgieri

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Privacy law has long centered on the individual. But we observe a meaningful shift toward group harm and rights. There is growing recognition that data-driven practices, including the development and use of artificial intelligence (AI) systems, affect not just atomized individuals but also their neighborhoods and communities, including and especially situationally vulnerable and historically marginalized groups.

This Article explores a recent shift in both data privacy law and the newly developing law of AI: a turn towards stakeholder participation in the governance of AI and data systems, specifically by impacted groups often though not always representing historically marginalized communities. In …

Centering The Vulnerable Through Data Protection, Scott Skinner-Thompson

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No abstract provided.

An American's Guide To The Eu Ai Act, Margot Kaminski, Andrew D. Selbst

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The EU AI Act entered into force in August 2024. The AI Act is long. It is complicated. It relies on a regulatory framework and institutions unfamiliar to many in the United States. But as the first omnibus AI regulation worldwide, it has the potential to have a vast influence on both practice and lawmaking.

In this Article, we provide the American's Guide to the EU AI Act. This Article breaks down the AI Act for a U.S. law audience, explaining the overall mechanisms, and how the Act interacts with background EU laws and institutions. At its core, the AI …

Valuing Social Data, Amanda Parsons, Salome Viljoen

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Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones

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Artificial Intelligence (AI) systems such as ChatGPT can now produce convincingly human speech, at scale. It is tempting to ask whether such AI-generated content “disrupts” the law. That, we claim, is the wrong question. It characterizes the law as inherently reactive, rather than proactive, and fails to reveal how what may look like “disruption” in one area of the law is business as usual in another. We challenge the prevailing notion that technology inherently disrupts law, proposing instead that law and technology co-construct each other in a dynamic interplay reflective of societal priorities and political power. This Essay instead deploys …

Getting Real About Protecting Privacy, Scott Skinner-Thompson

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No abstract provided.

Privacy Without The State?, Scott Skinner-Thompson

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No abstract provided.

The Gdpr And Uk Gdpr And Its Impact On Us Academic Institutions, Leila Halawi, Alpesh Makwana

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This research paper delves into the implications of the General Data Protection Regulation (GDPR) and the United Kingdom (UK) GDPR on academic institutions, shedding light on their significance for organizations and educational establishments handling data from individuals in the European Union (EU) and the UK. Non-compliance with these regulations can lead to substantial penalties. The study focuses specifically on US Higher Education and presents actionable measures that institutions can adopt to enhance compliance, fortify data protection, and safeguard the privacy of individuals.

Toward Stronger Data Protection Laws, Margot E. Kaminski

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No abstract provided.

Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson

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No abstract provided.

Regulating The Risks Of Ai, Margot E. Kaminski

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Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

Privacy Peg, Trade Hole: Why We (Still) Shouldn’T Put Data Privacy In Trade Law, Margot E. Kaminski, Kristina Irion, Svetlana Yakovleva

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No abstract provided.

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

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No abstract provided.

The Case For Data Privacy Rights (Or 'Please, A Little Optimism'), Margot E. Kaminski

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No abstract provided.

Introduction: Privacy Studies, Surveillance Law, Scott Skinner-Thompson

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This Dialogue section examines perspectives on how privacy law scholarship and surveillance scholarship can be further enriched with more critical reflection and discussion between the disciplines and includes valuable contributions from thought leaders in each field.

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

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The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for …

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

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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 …

Algorithmic Impact Assessments Under The Gdpr: Producing Multi-Layered Explanations, Margot E. Kaminski, Gianclaudio Malgieri

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Policy-makers, scholars, and commentators are increasingly concerned with the risks of using profiling algorithms and automated decision-making. The EU’s General Data Protection Regulation (GDPR) has tried to address these concerns through an array of regulatory tools. As one of us has argued, the GDPR combines individual rights with systemic governance, towards algorithmic accountability. The individual tools are largely geared towards individual “legibility”: making the decision-making system understandable to an individual invoking her rights. The systemic governance tools, instead, focus on bringing expertise and oversight into the system as a whole, and rely on the tactics of “collaborative governance,” that is, …

The Relationship Between Privacy Notice Formats And Consumer Disclosure Decisions: A Quantitative Study, Alexys Mercedes Carlton, David Cross

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In the Data Era, the future success of many businesses will heavily depend on the business’ ability to collect and process consumer personal information. Business leaders must understand and implement practices that increase consumer trust to influence their willingness to disclose their information. The problem addressed by this study is many consumers do not trust online service providers with their personal information, and as a result, have refrained from engaging in online activities. The purpose of this quantitative correlational study was to understand how consumers use privacy notices when deciding to share their personal information with online businesses. A sample …

Are Data Privacy Laws Trade Barriers?, Margot Kaminski

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No abstract provided.

A Recent Renaissance In Privacy Law, Margot Kaminski

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Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes

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This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

An American's Guide To The Gdpr, Margot Kaminski, Meg Leta Jones

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No abstract provided.

A Tale Of Two Privacy Laws: The Gdpr And The International Right To Privacy, Vivek Krishnamurthy

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No abstract provided.

Recording As Heckling, Scott Skinner-Thompson

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A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

The Left's Law-And-Order Agenda, Aya Gruber

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No abstract provided.

The Right To Explanation, Explained, Margot E. Kaminski

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Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

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No abstract provided.

Robotic Speakers And Human Listeners, Helen Norton

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In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.