Privacy Law Commons^™

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, …

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 …

Regulating Personal Data Usage In Covid-19 Control Conditions, Mark Findlay, Nydia Remolina

Centre for AI & Data Governance (2019-2025)

As the COVID-19 health pandemic ebbs and flows world-wide, 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 capacity to amass and share personal data for community control and citizen safety motivations that empower state agencies and inveigle citizen co-operation which could only be imagined outside times of real and present personal 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 (provided that the technology …

Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

America’s privacy bill has come due. Since the dawn of the Internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for Fair Information Processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seemed poised to blanket the country with FIP-based laws if Congress fails to act. The United States is thus in the midst …

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 …

Data And The Social Obligation Norm Of Property: An Essay In Honor Of Professor Gregory S. Alexander, Christopher K. Odinet

Cornell Journal of Law and Public Policy

In the age of the Cambridge Analytica/Facebook scandal and sundry other data breaches at Under Armour, Target, and Best Buy, the issue of security and privacy in consumer data has become increasingly important. For much of the modern era, the development of technology has gone relatively unchecked, with the United States having ceded much of the policymaking terrain to Silicon Valley. This has resulted in the unbridled creation of vast amounts of consumer data. Users who engage with tech platforms generate bits and bytes about themselves based on their activities, preferences, and habits. This information-this "data"- is then harnessed by …

Gdpr And The Importance Of Data To Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

What is the impact of the European Union’s General Data Protection Regime (“GDPR”) and data regulation on AI startups? How important is data to AI product development? We study these questions using unique survey data of commercial AI startups. AI startups rely on data for their product development. Given the scale and scope of their business models, these startups are particularly susceptible to policy changes impacting data collection, storage and use. We find that training data and frequent model refreshes are particularly important for AI startups that rely on neural nets and ensemble learning algorithms. We also find that firms …

A Recent Renaissance In Privacy Law, Margot Kaminski

Publications

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

Open Banking: Regulatory Challenges For A New Form Of Financial Intermediation In A Data-Driven World, Nydia Remolina

Centre for AI & Data Governance (2019-2025)

Data has taken immense importance in the last years. Consider the amount of data that is being collected worldwide every day, industries are reshaping their activities into a data-driven business. The digital transformation of all industries, portent of the fourth industrial revolution, is creating a new kind of economy based on the datafication of almost any aspect of human social, political and economic activity as a result of the information generated by the numerous daily routines of digitally connected individuals and technology. The financial services industry is part of this trend. Embracing the digital revolution and creating the right foundations …

Moving On From The Ombuds Model For Data Protection In Canada, Teresa Scassa

Canadian Journal of Law and Technology

Both the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act adopt an ombuds model when it comes to addressing complaints by members of the public. This model is also present in other data protection laws, including public sector data protection laws at the provincial level, as well as personal health information protection legislation. The focus of this short paper is the model adopted in PIPEDA and its ongoing suitability. PIPEDA was designed to apply across the full range of private sector actors and is increasingly under strain in the big data society. These factors may make …

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

If The Legislature Had Been Serious About Data Privacy..., Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

When Data Comes Home: Next Steps In International Taxation’S Information Revolution, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

Over the last decade, there has been a revolution in cross-border tax information exchange and reporting. While this dramatic shift was the product of multiple forces and events, a fundamental reality is that politics, technology, and law intersected to drive the shift to the point where nation-states will now transmit and receive from each other significant ongoing flows of taxpayer information. States can now expect to accumulate large stashes of data on cross-border income, assets, and activities on a scale and level of comprehensiveness unmatched by previous information exchange regimes.

This article examines the pressing follow-up question of how this …

Introducing The Global Data Privacy Prize, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Pathologies Of Digital Consent, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Consent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions …

Protecting Consumers' Personal Data In The Digital World: Challenges And Changes, Man Yip

Research Collection Yong Pung How School Of Law

At the Personal Data Protection Seminar 2017, Dr Yaacob Ibrahim, Minister for Communications and Information, said that Singapore must “aspire towards a high standard of data protection that strengthens trust with the public, gives confidence to customers whose data is collected and used, while providing an environment for companies to thrive in the digital economy”.

Protecting Consumers' Personal Data In The Digital World: Challenges And Changes, Man Yip

Research Collection Yong Pung How School Of Law

At the Personal Data Protection Seminar 2017, Dr Yaacob Ibrahim, Minister for Communications and Information, said that Singapore must “aspire towards a high standard of data protection that strengthens trust with the public, gives confidence to customers whose data is collected and used, while providing an environment for companies to thrive in the digital economy”.

Prioritizing Privacy In The Courts And Beyond, Babette Boliek

Cornell Law Review

Big data has affected American life and business in a variety of ways—inspiring both technological development and industrial change. The legal protections for a person’s right to his or her own personal information, however, have not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when third party privacy interests are at stake in litigation. Judicial orders to compel sensitive data are expressly permitted even under the few privacy statutes that may limit data transfers. Historically, the Federal Rules of Civil Procedure favor generous disclosure of information. But as litigation becomes more technical and …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Eduard Fosch Villaronga, Peter Kieseberg, Tiffany Li

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond

All Faculty Scholarship

No abstract provided.

Expanding The Artificial Intelligence-Data Protection Debate, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

An Unstoppable Force And An Immoveable Object? Eu Data Protection Law And National Security, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Case Against Idealising Control, Woodrow Hartzog

Faculty Scholarship

Seemingly everyone, from scholars, industry, and privacy advocates to lawmakers, regulators, and judges seems to have settled on the idea that the key to privacy is control over personal information. But in practice, there is only so much a person can do. Control is far too precious and finite of a concept to meaningfully scale. It will never work for personal data mediated by technology.

Now we have an entire empire of data protection built around the crumbling edifice of control. The idealisation of control in modern data protection regimes like the GDPR and the ePrivacy Directive creates a pursuit …

Blockchain Versus Data Protection, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Maryland Law Review

No abstract provided.

The Rise Of Cybersecurity And Its Impact On Data Protection, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

The Gdpr As A Chance To Break Down Borders, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Nora Ni Loideain

Articles by Maurer Faculty

No abstract provided.

The Language Of Data Privacy Law (And How It Differs From Reality), Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.