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 …

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 …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

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 …

Handle With Care: Domestic Violence Safety Planning In The Age Of Data Privacy Laws, Jenny Wu

Seattle Journal of Technology, Environmental, & Innovation Law

The United States has been patiently waiting for a comprehensive federal data privacy law to protect consumers. However, strong data privacy laws can also protect a less thought-about group: survivors of domestic violence and intimate partner violence. As new technology proliferates into our daily lives, technology-based abuse is quickly becoming a common form of intimate partner abuse. Domestic violence survivors and advocates have to stay extra vigilant about who has access to their internet data. Needing to understand technology-specific safety measures and learn technology-literacy skills adds more work to already overwhelmed domestic violence advocates and survivors. Could the law serve …

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several …

Note: Scraping Photographs, Maggie King

Notre Dame Journal on Emerging Technologies

This note explores whether any existing laws prohibit scraping photographs, as suggested by Facebook and other big tech companies’ recent actions against Clearview. After examining each potential claim, this note argues that no existing law should be construed to hold Clearview liable for scraping photographs, because doing so would create inconsistencies in existing law. But also, the apparent legality of Clearview’s scraping activity presents an argument for a reversal of the recent trend towards laws that, guided by the principle of a free and open internet, favor scraping. Rather, the apparent legality of activity that ultimately enables otherwise unrestrained modern …

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.

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany C. Li

Law Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical Al. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency …

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany C. Li

Loyola University Chicago Law Journal

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency …

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.

"Times They Are A Changin'" - Can The Ad Tech Industry Survive In A Privacy Conscious World?, Meaghan Donahue

Catholic University Journal of Law and Technology

The "ad tech ecosystem" is a web of interconnected technologies and intermediaries that facilitate targeted advertising based on consumer data, and supports the free internet while providing users with promotional content relevant to their interests. However, in recent years, lawmakers and consumer advocates have highlighted the dangers associated with the unregulated use of consumer data for advertising purposes, prompting a flurry of legislative action at both the state and federal levels. These various laws and proposed bills impose new challenges on the ad tech industry--threatening to fundamentally change the way the business operates. However, through innovation and creative thinking, the …

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

Privacy-As-Property: A New Fundamental Approach To The Right To Privacy And The Impact This Will Have On The Law And Corporations, Sevion Dacosta

CMC Senior Theses

The most popular conception of the right to privacy stems from Warren and Brandeis’s description of privacy as “the right to be left alone.” This theory ultimately points to a more fundamental approach to the right to privacy rooted in property rights. This fundamental approach - which I call privacy-as-property - is what I establish in this paper. I argue that the Lockean concept of property that “every man has a property in his own person” provides the foundation for the right to privacy. Privacy-as-property begins with the fundamental right to control oneself. Because of this intrinsic right, your property …

Law Library Blog (January 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

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 …

Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.

The Threat Of Data Misuse As An Injury-In-Fact: Establishing A Uniform Framework For Constitutional Standing In The Privacy Era, Isabella Anderson

West Virginia Law Review

No abstract provided.

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany Li

Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors are using new technologies, like heat sensing, and technologically-influenced programs, like contact tracing, alike in response, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the …

Wire(Less) Tapping: Protecting Arkansans' Fourth Amendment Right In The Era Of The Cloud, Erin James

Arkansas Law Review

Every day we surround ourselves with dozens of devices that monitor our every move, every request, all connecting with one another and sending massive amounts of data back to the device manufacturers. The idea of the prosecution placing the little black cylinder of your Amazon Alexa on the witness stand and asking Alexa to testify against you seems like something pulled from an Orwellian nightmare. But, in reality, it is already occurring.

Modern Privacy Advocacy: An Approach At War With Privacy Itself?, Justin "Gus" Hurwitz, Jamil N. Jaffer

Pepperdine Law Review

This Article argues that the modern concept of privacy itself, particularly as framed by some of its most ardent advocates today, is fundamentally incoherent. The Article highlights that many common arguments made in support of privacy, while initially seeming to protect this critical value, nonetheless undermine it in the long run. Using both recent and older examples of applying classic privacy advocacy positions to key technological innovations, the authors demonstrate how these positions, while seemingly privacy-enhancing at the time, actually resulted in outcomes that were less beneficial for consumers and citizens, including from a purely privacy-focused perspective. As a result, …

When Considering Federal Privacy Legislation, Neil Chilson

Pepperdine Law Review

Legislators, advocates, and business interests are proposing federal privacy legislation with new urgency. The United States has a long-established federal framework for addressing commercial privacy concerns, including general consumer protection law and sector-specific legislation. But the calls to expand or replace this approach have grown louder since Europe’s General Data Protection Regulation went into effect and since California adopted detailed and prescriptive privacy legislation. Should we create a U.S. federal privacy law, and if so, how? When considering any kind of privacy regulation, three concepts are fundamental. First, no one can control all information about them. Second, all privacy laws …

The Limits And Possibilities Of Data-Driven Antitrafficking Efforts, Jennifer Musto Ph.D.

Georgia State University Law Review

An examination of technology in the countertrafficking space reveals recurring tensions between law enforcement and rights-based approaches. It also illuminates assumptions, such as the one that posits more law enforcement-focused, nonstate-actor-supported data-driven efforts are necessary to securing justice for people in trafficking situations. However, a closer look at how technology is used and by whom also invites us to ask different questions and to leverage the power of our all-too-human creative potential in thinking about how to value and prioritize data ethics, transparency, and accountability in future countertrafficking work.

Cell-Site Location Information And The Privacies Of Life: The Impact Of Carpenter V. United States, Trevor Moore

Loyola of Los Angeles Law Review

No abstract provided.

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 …

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

Investments And Security: Balancing International Commerce And National Security With Expanded Authority For The Committee On Foreign Investment In The United States, Christopher Jusuf

Catholic University Journal of Law and Technology

What happens when the interests of international trade conflict with those of national security? This article analyzes this question within the context of the Committee on Foreign Investment in the United States (CFIUS), an obscure but increasingly powerful executive panel that exercises the president's broad authority to unilaterally interfere with and stop international mergers and acquisitions. With the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), CFIUS is more powerful now than it has ever been, and should be a key consideration for any company seeking to do business with foreign investors. This is especially true as America …