Privacy Law Commons^™

A Shield For Whom? The Disastrous Hidden Toll Of Section 230 On Children, Dominic Roschival

University of Cincinnati Law Review

No abstract provided.

Target(Ed) Advertising, Derek E. Bambauer

UF Law Faculty Publications

Targeted advertising—using data about consumers to customize the ads they receive—is deeply controversial. It also creates a regulatory quandary. Targeted ads generate more money than untargeted ones for apps and online platforms. Apps and platforms depend on this revenue stream to offer free services to users, if not for their financial viability altogether. However, targeted advertising also generates significant privacy risks and consumer resentment. Despite sustained attention to this issue, neither legal scholars nor policymakers have crafted interventions that address both concerns, and existing regulatory regimes for targeted advertising have critical gaps.

This Article makes three key contributions to the …

Brokered Violence: Safety For Sale In The Free Marketplace Of Data, Sam Adler, Thomas E. Kadri, Chinmayi Sharma

Popular Media

This article exposes how the unregulated data broker industry fuels violence by selling detailed personal information gathered from public records, social media, and private sources. Drawing on the Minnesota assassinations and other cases, it shows how such data enables stalking, harassment, and targeted attacks. The piece critiques state and federal laws like California’s DELETE Act and New Jersey’s Daniel’s Law for leaving victims to navigate slow, fragmented removal processes. It proposes a centralized victim registry with rapid compliance requirements, shifting responsibility to brokers. Finally, it challenges the industry’s First Amendment defense, urging legal reforms that prioritize public safety over commercial …

Gig Work At What Cost? Exploring Privacy Risks Of Gig Work Platform Participation In The U.S., Amogh Pradeep, Johanna Gunawan, Álvaro Feal, Woodrow Hartzog, David Choffnes

Faculty Scholarship

In recent years, "gig work" platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps.

This paper presents an empirical measurement of 16 gig work platforms' data practices in the U.S. We analyze what data is collected by these platforms, and how it is …

The Myth Of Children’S Online Privacy Protection, Stacey Steinberg

UF Law Faculty Publications

Digital technology has changed the landscape young people face as they come of age. It has changed how children interact with their parents, schools, community organizations, and the state. Despite many benefits, digital technologies that employ data collection, algorithms, and artificial intelligence pose significant risks for the next generation. Private businesses can collect, use, and sell a child’s data in ways never imagined by their families. Information collected by third parties with good intentions can be stolen through data breaches. Through faulty algorithms, websites can make inaccurate assumptions about young people’s interests, teachers can make inaccurate assumptions about a student’s …

Data Is What Data Does: Regulating Based On Harm And Risk Instead Of Sensitive Data, Daniel J. Solove

Northwestern University Law Review

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is …

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

The Rise Of 5g Technology: How Internet Privacy And Protection Of Personal Data Is A Must In An Evolving Digital Landscape, Justin Rabine

Catholic University Journal of Law and Technology

No abstract provided.

Legislating Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

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 …

Comments Of The Cordell Institute On The Prevalence Of Commercial Surveillance And Data Security Practices That Harm Consumers, Neil M. Richards, Woodrow Hartzog, Jordan Francis

Scholarship@WashULaw

These comments are a response to the Federal Trade Commission's 2022 advance notice of proposed rulemaking (“ANPR”) requesting public comment on the prevalence of commercial surveillance and data security practices that harm consumers (Commercial Surveillance ANPR, R111004).

In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

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 …

The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

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.

A Duty Of Loyalty For Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

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, …

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 …

Inescapable Surveillance, Matthew Tokson

Utah Law Faculty Scholarship

Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.

In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot …

Poland’S Challenge To Eu Directive 2019/790: Standing Up To The Destruction Of European Freedom Of Expression, Michaela Cloutier

Dickinson Law Review (2017-Present)

In 2019, the European Parliament and Council passed Directive 2019/790. The Directive’s passage marked the end of a fouryear- long legislative attempt to impose more liability for copyright violations on Online Service Providers, an effort which was controversial from the start. Online Service Providers fear that the 2019 Directive, especially its Article 17, will completely change the structure of liability on the Internet, forcing providers to adopt expensive content filtering systems. Free speech advocates fear that ineffective filtering technology will infringe upon Internet users’ rights to express themselves, and legal scholars have pointed out the Directive’s inconsistency with prior European …

The Internet Never Forgets: A Federal Solution To The Dissemination Of Nonconsensual Pornography, Alexis Santiago

Seattle University Law Review

As technology evolves, new outlets for interpersonal conflict and crime evolve with it. The law is notorious for its inability to keep pace with this evolution. This Comment focuses on one area that the law urgently needs to regulate—the dissemination of “revenge porn,” otherwise known as nonconsensual pornography. Currently, no federal law exists in the U.S. that criminalizes the dissemination of nonconsensual pornography. Most U.S. states have criminalized the offense, but with vastly different degrees of severity, resulting in legal inconsistencies and jurisdictional conflicts. This Comment proposes a federal solution to the dissemination of nonconsensual pornography that carefully balances the …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

Protecting Personal Data: A Model Data Security And Breach Notifications Statute, Michael Bloom

St. John's Law Review

(Excerpt)

This Note argues that current law is inadequate to protect consumers in light of the prevalence and severity of data breaches in recent years, and that a unifying federal legislation combining portions of state law and the DSBNA should be enacted. Part I of this Note analyzes the DSBNA for notification requirements when data breaches occur, the requirements for the implementation of security policies, regulatory mechanisms for monitoring compliance with these requirements, and criminal penalties for failing to comply. Part II summarizes the various state laws that exist for notification of data breaches. Part III proposes a model federal …

Requiem For Cyberspace: The Effect Of The European General Privacy Regulation On The Global Internet, Steven Tapia

Seattle University Law Review

The dream of a perpetual, limitless, non-dimensional space is an idea that has transfixed clergy, philosophers, and poets for ages. Whether it is called “heaven,” “the afterlife,” “nirvana,” or another linguistic stand-in, the dream of a dimension beyond the bounds of time, space, and the laws of nature seems as universal as any concept ever. From its initial development in the 1970s (as a military, academic, and governmental experiment in creating a wholly alternative means of communication capable of surviving catastrophic failures of any parts of the communications conduits) until essentially now, the Internet seemed to be the closest incarnate …

Footprints: Privacy For Enterprises, Processors, And Custodians…Oh My!, Blair Witzel, Carrie Mount

Seattle University Law Review

Americans’ interest in privacy—as evidenced by increasing news coverage, online searches, and new legislation—has grown over the past decade. After the European Union enacted the General Data Protection Regulation (GDPR), technologists and legal professionals have focused on primary collectors of data—known under various legal regimes as the “controller” or “custodian.” Thanks to advances in computing, many of these data collectors offload the processing of data to third parties providing data-related cloud services like Amazon, Microsoft, and Google. In addition to the data they have already collected about the data subjects themselves, these companies now “hold” that data on behalf of …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.