Privacy Law Commons^™

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

The Rights Of Donor-Conceived Persons In Colorado: America's First Foray Into Abolishing Anonymous Gamete Donation, Madeline Ash

Indiana Law Journal

On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United …

The Trade Origins Of Privacy Law, Anupam Chander

Indiana Law Journal

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

Meta V Bundeskartellamt: A Double-Edged Sword For Consumer Protection, Adrianus Van Heusden, Larisa Munteanu

International Journal on Consumer Law and Practice

Although consumers and data subjects do not always overlap in the European Union, the fields of data protection and consumer law are increasingly intertwined. Within this case note, one of the most impactful and recent decisions of the Court of Justice of the European Union will be analysed. Case C-252/21 will be examined through the lens of consumers using social networks in the digital age, additionally making references to the ‘take it or leave it’ and ‘cash for privacy exchange’ concepts identified by the doctrine in the field. Innovatively, this commentary will present a distinct and atypical opinion related to …

Coping With Coppa: Exploring Alternatives To The Children's Online Privacy Protection Act, Andrew Parra

Indiana Journal of Law and Social Equality

The Children’s Online Privacy Protection Act of 1998 (COPPA) stands as one of the greatest protectors of children’s privacy for nearly twenty-five years. However, COPPA has struggled to keep pace with technological changes during this time, and the COVID-19 pandemic highlighted the shortcomings of COPPA regulations as children were forced to spend increased amounts of time in digital spaces. As the Federal Trade Commission (FTC) is set to make changes to COPPA, it is necessary to consider what changes would be most beneficial to protect children. This paper will explore the current regulatory framework, its strengths and weaknesses, and then …

Privacy's Algorithmic Turn, Maria P. Angel

Scholarly Works

As algorithms have taken over contemporary society, a portion of American privacy law scholars has gradually transformed information privacy into a post- algorithmic concept. Besides enabling individuals to protect their autonomy and attain certain collective benefits, these scholars now expect information privacy to act as the government's tool to protect society against data extraction and its consequent power asymmetries. This Article presents evidence of this transfor- mation-here referred to as "privacy's algorithmic turn"-, identifying its two main features: (1) a change in what is usually considered privacy harms, and (2) a transformation of the tools proposed to protect privacy. Additionally, …

Beyond Neural Data: Cognitive Biometrics And Mental Privacy, Patrick Magee, Marcello Ienca, Nita Farahany

Faculty Scholarship

Innovations in wearable technology and artificial intelligence have enabled consumer devices to process and transmit data about human mental states (cognitive, affective, and conative) through what this paper refers to as ‘‘cognitive biometrics.’’ Devices such as brain-computer interfaces, extended reality headsets, and fitness wearables offer significant benefits in health, wellness, and entertainment through the collection and processing and cognitive biometric data. However, they also pose unique risks to mental privacy due to their ability to infer sensitive information about individuals. This paper challenges the current approach to protecting individuals through legal protections for ‘‘neural data’’ and advocates for a more …

U.S. Public Perceptions Of The Sensitivity Of Brain Data, Shenyang Huang, Umika Paul, Shikhar Gupta, Karan Desai, Melinda Guo, Jennifer Jung, Beatrice Capestany, William D. Krenzer, Dylan Stonecipher, Nita A. Farahany

Faculty Scholarship

As we approach an era of potentially widespread consumer neurotechnology, scholars and organizations worldwide have started to raise concerns about the data privacy issues these devices will present. Notably absent in these discussions is empirical evidence about how the public perceives that same information. This article presents the results of a nationwide survey on public perceptions of brain data, to inform discussions of law and policy regarding brain data governance. The survey reveals that the public may perceive certain brain data as less sensitive than other ‘private’ information, like social security numbers, but more sensitive than some ‘public’ information, like …

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

Justice David Hackett Souter And The Right To Privacy, Scott P. Johnson

Mitchell Hamline Law Review

No abstract provided.

The New Eu-Us Data Protection Framework's Implications For Healthcare, Charlotte A. Tschider, Marcelo Corrales Compagnucci, Timo Minssen

Faculty Publications & Other Works

In July 2023, the United States and the European Union introduced the Data Privacy Framework (DPF), introducing the third generation of cross-border data transfer agreements constituting adequacy with respect to personal data transfers under the General Data Protection Regulation (GDPR) between the European Union (EU) and the US. This framework may be used in cross-border healthcare and research relationships, which are highly desirable and increasingly essential to innovative health technology development and health services deployment. A reliable model meeting EU adequacy requirements could enhance the transfer of patient and research participant data. While the DPF might present a familiar terrain …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

University of Colorado Law Review

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Injunction Function: Is Ip Law Promoting Markets For Innovators And Creators?, Kristen Osenga

Law Faculty Publications

32 Federal Circuit Bar Journal 4 (2024) The Federalist Society hosted this panel on November 11, 2023, as part of their 2023 National Lawyers Convention in Washington, D.C. This panel focuses on the role injunctions play in the facilitation or constraining commercialization of patent technologies and copyright, the current state of the law, and its meaning for next-generation innovations like creative uses of artificial intelligence.

The Trade Origins Of Privacy Law, Anupam Chander

Georgetown Law Faculty Publications and Other Works

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

The Battle Between Open Markets And National Security: How Limiting Investments Into Foreign Technology Might Be Hurting National Security Goals, Alexandra Van Cleef

Catholic University Journal of Law and Technology

No abstract provided.

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Faculty Journal Articles and Book Chapters

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

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

Publications

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

Publications

No abstract provided.

Cyberflashing: Exposing Oklahoma’S Legal Loophole, Sara Wray

Oklahoma Law Review

No abstract provided.

Superpowers With Villainous Objectives: How The Executive Branch’S Immigration Enforcement “Powers” Utilize Technology To Violate Noncitizens’ Privacy, Nina-Simone Edwards

Library Scholarship

The United States border, for noncitizens, has a unique quality to it. Each time a noncitizen crosses that border, they are no longer private individuals. They can no longer choose to give up their information–instead, there is a forced exchange: data for entry. Who they are, what they are, and everything that connects them to the world is given up in exchange for a new life in a new land. Once the border is crossed, noncitizens no longer have the privacy that they may have known before. This Note first builds on scholarship theorizing that noncitizens do have a right …

My Body, My Choice, My Data: Information Privacy After Dobbs, My Kim Ong

University of San Francisco Law Review

No abstract provided.

Datafication, Power, And Publics In India's National Digital Health Ecosystem, Ramya Chandrasekhar

Socio-Legal Review

While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (‘NDHE’) – a digital system for the generation, use, and “frictionless” circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure.” Seeing the NDHE as a data infrastructure allows us …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …