Spring 2020 [12:45-2:00pm, Furman Hall, 245 Sullivan Street, Room 120]
April 29: Students on Policy
April 22: Tom McBrien
April 15: Katherine Strandburg, Salome Viljoen & Gabriel Nicholas
April 8: Caroline Alawaerts
April 1: Thomas Streinz
March 25: Christopher Morten
March 11: Ira Rubinstein
March 4: Lilla Montanagni
February 26: Stein
February 19: Seb Benthall
February 12: Yafit Lev-Aretz & Madelyn Sanfilippo
February 5: Jake Goldenfein
January 29: Albert Fox Cahn
January 22: Ido Sivan-Sevilia — Europeanization on Demand? The EU's Cybersecurity Certification Regime Between the Rationale of Market Integration and the Core Functions of the State
ABSTRACT: The literature on EU integration has been distinguishing between market and core states powers types of integration. Whereas market integration emphasizes joint gains from harmonized trade settings and usually settles the shape of European regulation based on the largest common multiple with a decisive role to EU’s supranational institutions, the integration of core states powers involves contested resource mobilization of national capacities to the EU level that are derived from the state’s monopoly on national security, defense, coercion, and taxation. For such integration, state elites are expected to prefer intergovernmental over supranational arrangements with a narrowly defined EU mandate. For the integration of cybersecurity certification, however, it is unclear what type of ‘post-integration’ policy design to expect. The security certification of products and infrastructures is both a market integration issue - creating a market for certified products in the age of ‘Internet of Things’ (e.g. certifying smart meters) - and a core state powers integration, mobilizing the capacity to set standards and certify nationally-sensitive infrastructures (e.g. smart power grids). Therefore, this study asks (1) how and to what extent the cybersecurity certification regime has been integrated? And (2) what explains considerable differences in such integration across different regime components? Through a process-tracing analysis based on 40 policy documents and 18 interviews, this paper deconstructs EU cybersecurity certification into standardization, accreditation, certification, and evaluation components; studies the designed multi-level interactions for each of these components; analyzes and labels each of the regime components according to their national, intergovernmental, or supranational nature; and explains how, and to what extent, classical theories of EU integration: supranationalism (through cultivated and functional spill overs) and liberal intergovernmentalism explain how cybersecurity certification has been ‘Europeanized.’ I find that the chosen policy design for the different regime components provides functional and political solutions that suggest a ‘Europeanization on Demand’ model, which allows member states to closely control and limit the extent of integration to specific economic sectors.
December 4: Ari Waldman — Discussion on Proposed Privacy Bills
November 20: Margarita Boyarskaya & Solon Barocas [joint work with Hanna Wallach] — What is a Proxy and why is it a Problem?
ABSTRACT: Indirect discrimination via proxy variables is a notorious problem in algorithmic fairness. The goal of non-discrimination restricts the use of sensitive and/or legally protected features in statistical decision-making. However, even when the sensitive feature A is not directly provided as an input into a model, discrimination on the basis of A may persist – intentionally or inadvertently – via the use of the so-called proxy variables. Current discussions in computer science literature take an ad hoc approach in their treatment of proxy variables. We formalize various definitions of a proxy variable and describe the statistical relationships that such definitions entail. We answer the question of what it means to have ‘a proxy problem’ from both statistical and legal perspectives, and offer a detailed survey of the various ways decision-makers might respond to the problem. We challenge a common fallacy in replacing a contentious proxy by another variable that appears to be more relevant to the outcome, but is nonetheless correlated with the sensitive feature, highlighting the way important distinctions between worldviews implicate different modeling choices. We suggest causal graphs as a tool for developing a principled approach to deciding whether to include, omit, or collect additional features in a model.
November 13: Mark Verstraete & Tal Zarsky — Data Breach Distortions
ABSTRACT: Data breach notifications are likely to be revised in the seemingly inevitable federal privacy overhaul. In light of the looming regulatory changes, this Article interrogates the structure and efficacy of the diverse set of breach notification statutes. In doing so, this Article makes several crucial innovations to the debate over these legal requirements, their justifications, and their need. First, this Article argues that the normative foundations of data breach notification are complicated by overlooked features of cybersecurity and tort law—moral luck and activity levels, respectively. Moral luck is particularly relevant for data breaches because whether a firm experiences a breach is often partly a matter of luck or other external reasons. Moreover, moral luck is particularly operative for data breaches because technological changes exacerbate the role of luck and the idiosyncratic disclosure remedy provides more intervention points for luck to operate. In addition to moral luck, the debate over data breach notification has overlooked another foundational inquiry—activity levels. Tort theorists recognize that tort law regulates both duty of care (the precautions a person must take) and activity levels (how often a person undertakes an activity). We examine how different activity levels—or opportunities for breach—are both influenced and influence the effectiveness of breach notification statutes. To do so, we assess how different activity levels of firms interact with the normative goals of breach notification. Next, we situate the insights from moral luck and activity levels within the debate over the normative goals of data breach notification. In particular, we argue that moral luck and activity levels complicate the validity of different normative foundations for these laws. In doing so, we detail an array of possible normative goals of data breach, including deterrence, mitigation, information forcing, and restorative justice. Ultimately, we argue that moral luck and activity levels complicate these different normative values. We also demonstrate how these different normative values conflict with each other and involve inevitable trade-offs. Finally, we build on these earlier complications to craft a more informed data breach notification statute. In doing so, it examines key breach notification statutes, assessing whether and how their elements are properly structured given the distortion effects we discuss. We perform a regulatory design analysis and select which specific features should be included in a model data breach notification statute.
November 6: Aaron Shapiro — Dynamic Exploits: Calculative Asymmetries in the On-Demand Economy
ABSTRACT: In this article, I argue that on-demand service firms secure their market power by cultivating and operationalising calculative asymmetries between platform managers and workers. Specifically, I analyse dynamic (or ‘surge’) pricing as an exemplary calculative technique. I show how the asymmetrical application of price-setting allows firms to leverage control over their workers at the aggregate level while maintaining the façade of autonomy at the individual level, thereby legitimising workers’ classification as independent contractors but solving the coordination problems the classification introduces. The article’s empirical contribution complements and extends previous critical research into the on-demand economy by analysing how management science models and simulates on-demand marketplaces to identify optimal management strategies. This literature provides novel insights into platform managers’ efforts to monopolise calculative agency at the expense of other market participants. The article concludes by considering the implications of the findings for our broader understanding of on-demand marketplaces.
October 30: Tomer Kenneth — Who Can Move My Cheese? Other Legal Considerations About Smart-Devices
ABSTRACT: This is a paper about your relationship with your fridge, which is about to get complicated. Technological innovations turn mundane devices into smart-devices, digitally operated and connected to the internet, part of the Internet of Things (IoT). These technological changes create exciting new possibilities but also pose numerous new legal challenges. Considerable legal scholarship is centered on using privacy and personal data to confront these challenges. Despite their importance, these concepts cannot answer all these challenges. This paper aims to broaden the scope of legal scholarship about IoT. It gazes beyond personal data and privacy issues and highlights other major legal concerns that smart-devices instigate. Drawing on a detailed analysis of the technology and some fundamental legal theory scholarship, this paper explores critical legal interest implicated by smart-fridges and other IoT technologies. It begins by discussing the distribution of first-order and second-order legal powers between the users and other possible operators of the smart-devices, stressing the need to revisit some core legal queries in light of IoT. Next, it explores the nature of personalization of IoT devices as limitations that operators impose on users, and emphasizes new and more pervasive limitations that IoT devices empower operators to impose. Finally, focusing on limitations that impede users’ freedom of choice and negative freedoms, this paper lays out a path for a more nuanced legal discussion about the harms that the imposition of such limitations brings about, juxtaposing the kind of imposing actors with the mode of limitation used. Doing that, the paper addresses vital legal challenges that are posed by IoT technology but are mostly overlooked by current legal scholarship. It aims to kick-off a more vibrant conversation about theoretical legal questions, ones that the legal community will have to confront in the coming years as smart-devices become more prevalent. Specifically, it wishes to draw attention to those law and technology questions that are outside the scope of privacy. While this paper will focus on smart-fridges as a primary case-study, the lion’s share of the technological and legal discussions is applicable to other IoT devices and to the general IoT legal discourse.
October 23: Yafit Lev-Aretz & Madelyn Sanfilippo — Privacy and Religious Views
ABSTRACT: Privacy is often an important value in religion. God’s omnipotence and pervasive surveillance within monotheistic faiths convey a general openness to flows of personal information to a divine recipient and religious leaders. Much has been written on privacy in religious practice and privacy as protecting religious freedoms. However, it is not well understood how religiosity or specific religious values impacts individuals’ privacy attitudes, as the pervasiveness of religious values in different contexts varies in highly individualistic ways. Even less is known about the impact of religious values on privacy views with respect to commerce and the use of personal information by the private sector, despite the fact that technology increasingly brings commercialization into religion. As part of a larger research agenda to explore religion and privacy with respect to commercial contexts and consumer behavior, Madelyn and Yafit structure their empirical inquiries around the Contextual Integrity framework. This paper specifically compares privacy practices and policies for Christian, Islamic, and Jewish mobile apps across eleven established functional categories: sacred textual engagement, prayer, meditation, devotional worship, rituals, utilities, wisdom and leaders, media outlets, games, kids, and social media. Results indicate that intra-religious norms limit personal information flows for apps developed by religious actors and for apps categorically associated with religious observation and practice, yet do not limit information collection by commercial developers, for paid apps, or for lifestyle and entertainment apps. Variations were present within religions, as Evangelical Christian apps, in comparison to a Catholic subset of Christian apps, had significantly more permissions granted on average. Further, inter-religious differences are significant, with permissions granted to Islamic apps as most numerous, and the average permissions granted to Jewish apps as fewest. Apps from commercial developers often asked for extensive permissions, including access to cameras and microphones that were unassociated with any features. We also found that commercially developed religious children’s apps were often among the most extensive in collecting user data, with many not clearly explaining COPPA compliance in their privacy policies and others removed from app markets during the course of our study for COPPA violations.
October 16: Salome Viljoen — Algorithmic Realism: Expanding the Boundaries of Algorithmic Thought
ABSTRACT: The field of computer science is in a bind: on the one hand, computer scientists are increasingly eager to address social challenges; on the other, the field faces a growing awareness that many well- intentioned applications of algorithms in social contexts have led to significant harm. We argue that productively moving through this bind requires developing new practical reasoning methods for those engaged in algorithmic work. To understand what such an intervention looks like and what it may achieve, we look to the twentieth century evolution in American legal thought from legal formalism to legal realism. Drawing on the lessons of legal realism, we propose a new mode of algorithmic thinking— "algorithmic realism”—that is attentive to the internal limits of algorithms as well as the social concerns that fall beyond the bounds of current algorithmic thinking. Algorithmic realism is a practical orientation to work, and thus will not on its own prevent every harmful impact of algorithms. Nevertheless, it will better equip engineers to reason about the sociality of their work, and provide a necessary first step toward reducing algorithmic harms.
October 9: Katja Langenbucher — Responsible A.I. Credit Scoring
ABSTRACT: A core element of a lender’s decision when handing out a loan is the assessment of the borrower’s creditworthiness. Some of this work is done by the lender himself, for example by performing internal checks and by applying rating models to information he may have at his disposal. Other parts of this task are outsourced to intermediaries, such as data brokers or credit rating agencies. The latter deliver credit scores based on their proprietary rating methodology. abstract continued
October 2: Michal Shur-Ofry — Robotic Collective Memory
ABSTRACT: The various ways in which robots and AI will affect our future society are at the center of scholarly attention. This essay, conversely, concentrates on their possible impact on humanity’s past, or more accurately, on the ways societies will remember their joint past. We focus on the emerging use of technologies that combine AI, cutting-edge visualization techniques, and social robots, in order to store and communicate recollections of the past in an interactive human-like manner. We explore the use of these technologies by remembrance institutions and their potential impact on collective memory. Taking a close look at the case study of NDT (New Dimensions in Testimony)—a project that uses ‘virtual witnesses’ to convey memories from the Holocaust and other mass atrocities—we highlight the significant value, and the potential vulnerabilities, of this new mode of memory construction. Against this background, we propose a novel concept of memory fiduciaries that can form the basis for a policy framework for robotic collective memory. Drawing on Jack Balkin’s concept of “information fiduciaries” on the one hand, and on studies of collective memory on the other, we explain the nature of and the justifications for memory fiduciaries. We then demonstrate, in broad strokes, the potential implications of this new conceptualization for various questions pertaining to collective memory constructed by AI and robots. By so doing, this Essay aims to start a conversation on the policies that would allow algorithmic collective memory to fulfill its potential, while minimizing its social costs. On a more general level, it brings to the fore a series of important policy questions pertaining to the intersection of new technologies and inter-generational collective memory.
September 25: Mark Verstraete — Inseparable Uses in Property and Information Law
ABSTRACT: Property law generally provides owners broad discretion over how to use the things they control. A person who purchases a car can determine whether it is best used for transportation or conceptual art. That said, ownership is still loosely constrained by general private and public law obligations. For instance, tort law prevents owners from using a souvenir baseball bat to strike people. At bottom, though, decisions about use are so central to ownership that one prominent property scholar—Larissa Katz—suggests that ownership exists, in part, to grant authority over who can determine how to use a thing. However, some things do not fit squarely within the prevailing property paradigm that only reluctantly scrutinizes downstream uses. For example, body parts, rights of publicity, personal information, and creative works reside at the edge of property and lead to thorny questions about uses after acquisition. Broadly, these things maintain a connection to specific people, even after transfer, which arguably justifies imposing restrictions on potential uses of these things. This Article focuses on these ambiguous cases in order to assess the wisdom of crafting special rules about downstream uses as well as create a theory about when a thing is inseparable from the person which vindicates these limitations. And further, this Article argues that separability—or the circumstances in which a thing is distinct from particular people—should determine the scope and content of potential use restrictions. In order to develop this theory, however, this Article offers a new vision of separability that more closely scrutinizes and considers uses, arguing that separability depends on both the connection a thing has to the person and how it is used. Moral philosophers (such as Immanuel Kant and G.W.F. Hegel) as well as contemporary property theorists have attempted to provide a conceptual analysis of separability but have largely overlooked the importance of use for this analysis. This Article breaks new ground by arguing that separability is a function of both the connection that a thing retains to a person and how it is used. The normative upshot of this approach is that it provides guidance for policymakers and theorists to distinguish between uses that are connected to people—and likely justify regulatory intervention—from uses that are distinct and should be less searchingly reviewed. After developing this theory, this Article applies its insights to contested cases from property law and information law. Separability provides crucial insights about potential use restrictions for rights of publicity, creative works, and body parts. Within information law, separability marks a new roadmap for the governance of personal data. Rather than focusing on collection, regulatory interventions should focus more squarely on potential uses. And further, uses that are inseparable from the person should be the focus of intervention.
September 18: Gabe Nicholas & Michael Weinberg — Data, To Go: Privacy and Competition in Data Portability
ABSTRACT: Today’s major social media platforms face serious scrutiny around privacy and anti-competitive behavior. Data portability, the principle that users should be able to move their data from one service to another, has been hailed as a way to improve competition without compromising privacy. As the logic goes, portability offers users ownership over their data by allowing them to download it, and at the same time, offers competitors opportunities to innovate, by letting them build and grow new products with uploaded incumbent data. This presentation will argue that, in the context of social network data, these dual goals of privacy and competitiveness from data portability are incompatible. When incumbents choose which data to make available in a portability regime, decisions that benefit the privacy of uploaders and third-party users harm the utility to competitors, and visa versa. There are at least three ways competitors might use social network data to create new products: to seed new profiles on a competing platform, to offer insights and novel applications through machine learning, or to recreate features from the incumbent platform and allow users to migrate over. This presentation will consider the privacy/competition trade-off for each of these three scenarios by looking at real data from Facebook’s portability platform, Download Your Information. In all three, the data Facebook makes available is likely insufficient to bring about meaningful competition. This could be improved by allowing users to export their social graphs, adding globally unique identifiers, or increasing the contextual data made available. However, these changes would compromise the privacy of uploading users and their connections, even ones who did not upload their own data to the new platform. Regulators who consider incorporating data portability should be specific with their goals, and in the case of social networks, choose between encouraging private data ownership and competition.
September 11: Ari Waldman — Privacy, Discourse, and Power
ABSTRACT: This project is about the discourses of privacy and privacy law. It constructs the landscape of privacy discourse, where it has been, where it is going, and who it empowers along the way. The dominant discourse of privacy today, often called "notice and consent", is explicitly neoliberal. This regime has been roundly criticized by privacy scholars as a failure. And yet, for all its faults, notice-and-consent always made sense from a sociological or phenomenological perspective. That is, it was inadequate yet scrutable; because of the latter, we determined the former. Neoliberal privacy law is ineffective, but it was always accessible and open for interrogation from the ground up. That inadequate, yet relatable discourse, however, is now losing ground to the inscrutable, unaccountable discourse of technology designers. I argue that the same neoliberal social, political, and legal forces, superpowered by more advanced technology and a more powerful technologist profession, are shifting privacy law discourse from accessible concepts like choice to inaccessible computer code, from something regulators could interrogate to the “black box” language of technology. The discourse of privacy law and, thus, power over its translation into practice, resides in the design team, where engineers, supervised by other engineers, make consequential choices about how, if at all, to interpret the requirements of privacy law and integrate them into the code of technologies they create. Based on primary source research, this project argues that the code-based discourse of engineers is gaining hegemonic power in privacy law, thereby defining privacy law and what it means in practice, stacking the deck against robust privacy protections, and undermining the promise of privacy laws already passed.
April 24: Sheila Marie Cruz-Rodriguez — Contractual Approach to Privacy Protection in Urban Data Collection
ABSTRACT: Data collection and data analysis methods are involved in a continuous iterative process, as a result, the tools we use to safeguard certain social interests may lag when compared against technology’s rapid pace. This article is written under the assumption that a sensor program is to be deployed in a jurisdiction that has recognized a right to locational privacy, making the collection of certain urban data unlawful absent contractual agreement between the parties or a specific regulation exempting such collection from a consent requirement. This analysis only includes data collection by private parties for commercial purposes, issues arising from government data collection practices are outside the scope of this article. The article considers the effectiveness of individual and community methods for solving the issues arising from urban data collection. In the first section, I evaluate an individual method by examining whether the contractual approach to urban data collection effectively safeguards consumer privacy interests. This is achieved by examining the notice and consent elements of contracts. Next, I analyze the challenges facing each element of the contractual approach along with its exceptions as recognized in the relevant literature (de-identification and anonymization) in order to conclude that in my view they are inadequate approaches to protect consumer privacy. The second section considers the community method under three main approaches. First, the implementation of a consent board who would be a party to the data collection contract and will analyze the relevant terms in order to either supply or withhold consent for the collection of urban data. This approach would be a community solution that aims to solve several issues arising from the problems related to notice and consent. Next, a Civic Data Trust that would manage the requirements for collection and access to the data itself. The Data Trust would be a local entity that would have control over the urban data. Lastly, a private non-profit entity authorized by the legislative power, to develop and enforce rules regarding urban data collection, use, and retention practices. Finally, the article discusses whether the challenges identified in the previous sections have been addressed by the alternatives discussed and identify areas of further research.
 As an example, In R. v. Jarvis, 2019 SCC 10, the Supreme Court of Canada ruled on February 14, 2019 that individuals are entitled to a reasonable expectation of privacy in public spaces. This decision has set as a precedent that a person’s reasonable expectation of privacy can no longer be purely based on one’s location, but instead in a “totality of circumstances”.
April 17: Andrew Selbst — Negligence and AI's Human Users
ABSTRACT: Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias.Tort scholars have mostly overlooked these challenges. This is understandable because they have been focused on autonomous robots, especially autonomous vehicles, which can easily kill, maim, or injure people. But this focus has neglected to consider the full range of what AI is. Outside of robots, AI technologies are not autonomous. Rather, they are primarily decision-assistance tools that aim to improve on the inefficiency, arbitrariness, and bias of human decisions. By focusing on a technology that eliminates users, tort scholars have concerned themselves with product liability and innovation, and as a result, have missed the implications for negligence law, the governing regime when harm comes from users of AI. The Article also situates these observations in broader themes of negligence law: the relationship between bounded rationality and foreseeability, the need to update reasonableness conceptions based on new technology, and the difficulties of merging statistical facts with individual determinations, such as fault. This analysis suggests that though there might be a way to create systems of regulatory support to allow negligence law to operate as intended, an approach to oversight that it not based in individual fault is likely to be a more fruitful approach.
April 10: Sun Ping — Beyond Security: What Kind of Data Protection Law Should China Make?
ABSTRACT: In September 2018, the draft of Personal Information Protection Law was firstly listed as one of the Class I items in the 5-year Legislative Plan of 13th Standing Committee of the National People’s Congress (NPCSC), which means China will finally make an official draft of DPL in near future. Actually, as early as 2003, with the rapid development on E-government, Chinese government has begun to try to make a DPL, but 5 years later, the attempt was failed without any result, except for an expert’s proposal draft with European style. It is from around 2010 that security in cyberspace gradually became the dominant concern in public and political opinions which provided the new incentive for Chinese DPL legislation. From then on, a whole new legislative mode, security-driven mode, appears through the articles and sections related to data protection scattered in criminal law, civil law and administrative law. However, the legislation under the security-driven mode only covers limited private sector, targets merely on data breach and illegal obtainment, lacks non-partial enforcing mechanism, and hardly balances different values. Meanwhile, with incredible technology development and application, the initiatives of personal data collecting and using in public and private sectors have become more and more ambitious without comprehensive legal frame of data protection. More importantly, because China is still struggling in transition, the current data protection laws have no roots in constitutional values, and hence, no compatible and profound theories. The incoming draft of DPA is an opportunity for China to re-comprehend the practice (Datalization, Centralization and Preconditionalization), structure their own theory (Marxism and informational person(human)), draw on experiences and lessons from Europe and the U.S., and mitigate the risk of international misunderstanding and distrust.
April 3: Moran Yemini — Missing in "State Action": Toward a Pluralist Conception of the First Amendment
ABSTRACT: Online speech intermediaries, particularly social platforms, have an enormous impact on internet users' freedom of expression. They determine the speech rules for most of the content generated and information exchanged today, and routinely interfere with users' speech, while enjoying practically unchecked power to block, filter, censor, manipulate, and surveil. Accordingly, our current system of free expression lacks one of the main requirements of a just system - the notion that no form of power is immune from the question of legitimacy. Scholarly responses to this situation tend to assign decreased weight to constitutional norms as means to impose duties on online intermediaries and promote internet users' speech, while focusing, instead, on other means, such as non-legal norms, legislative and administrative regulation, and technological design. This Article will swim against this current, arguing that a speech promoting environment cannot be sustained without an effective constitutional check on online intermediaries' exercise of power. Unfortunately, existing First Amendment doctrine poses high barriers for structural reform in the existing power relations between online intermediaries and their end users: (1) the "state action" doctrine prevents users from raising speech-related claims against online intermediaries; and (2) an expansive interpretation of what constitutes "speech" serves as a Lochnerian vehicle for intermediaries to claim immunity from government regulation. This Article will discuss these doctrinal barriers, as well as possible modifications to existing doctrine, which could create an environment more supportive of users' speech. However, more importantly, the main contribution of this Article to existing scholarship centers on the argument that a deeper reassessment of traditional doctrinal assumptions is required in order for the First Amendment to fulfill its speech-protecting role in the digital age. The underlying premise of traditional thinking about speech-related constitutional conflicts conceptualizes such conflicts as necessarily bipolar, speaker-government, equations. Accordingly, courts and scholars ordinarily focus on asking whether "the state" is present on one side of the equation or whether "a speaker" exists on the other. This way of thinking about speech-related conflicts suffers from grave limitations when trying to cope with the realities of networks comprised of multiple speakers and multiple censors/regulators (with potential overlaps between these categories). The bipolar conception of the First Amendment is simply incompatible with the type of conflicts that pluralist networks generate. Consequently, if the First Amendment is to have a significant speech-protective meaning in the digital ecosystem, a more sophisticated analysis than the reigning bipolar conception of the First Amendment is necessary. This Article will propose such an alternative analysis, which shall be denominated a pluralist conception of the First Amendment.
March 27: Nick Vincent — Privacy and the Human Microbiome
ABSTRACT: By even the most modest estimates, an individual human being may harbor over 30 trillion bacterial cells within and on her body. These bacterial communities thrive on our skin and hair, in our mouths, and throughout our digestive tracts, and they have the ability to carry and communicate far more information about us than we may at first realize. The composition of these communities is affected by what we eat, where we live, medications we have taken, and even the status of our overall health. This talk will address the burgeoning interest in using bacterial communities and the human microbiome in the spheres of forensic science and, more pertinent to our goals, privacy, before diving into an open discussion on the promises, drawbacks, and challenges of this technology. Is the thought of identifying the presence of a murderer at a crime scene, or using targeted advertising based off the bacterial communities in and around us the stuff of science fiction? Or is it just around the corner?
March 13: Nick Mendez — Will You Be Seeing Me in Court? Risk of Future Harm, and Article III Standing After a Data Breach
ABSTRACT: We examine the circuit split that has developed in the U.S. federal court system regarding an individual's ability to sue in federal court after their data has been compromised through a data breach or leak but has not been exploited in any other way. Following the U.S. Supreme Court's decision in Spokeo v. Robins, a plaintiff must show concrete and particularized harm to maintain standing to sue in federal court. Under Clapper, this may include imminent harm, including a substantial risk that the harm will occur. Four circuit courts (1st; 2d; 4th; 8th) have held that the mere exposure of data is insufficient to sustain an assertion that there is a substantial risk of harm, meaning therefore that the data breach victim has not experienced an injury in fact, and lacks standing to sue. Five circuits (DC; 3d; 6th; 7th; 9th) have held the opposite: that data in the hands of a hacker creates a substantial risk of harm that is sufficient to constitute an injury in fact, conferring standing on a data breach victim. Currently before the Court is a petition for certiorari on the 9th Cir. case In re Zappos that would potentially resolve the issue. We weigh the costs and benefits of each theory, and assess its applicability to other areas of privacy law. Attached as background reading are the cert petition and brief in opposition from Zappos.
March 6: Jake Goldenfein — Through the Handoff Lens: Are Autonomous Vehicles No-Win for Users
ABSTRACT: There is a great deal of hype around the potential social benefits of autonomous vehicles. Rather than simply challenge this rhetoric as not reflecting reality, or as promoting certain political agendas, we try to expose how the transport models described by tech companies, car manufacturers, and researchers each generate different political and ethical consequences for users. The paper explores three archetypes of autonomous vehicles - fully driverless cars, advanced driver assist systems, and connected cars. Within each archetype we describe how the components and actors of driving systems might be redistributed and transformed, how those transformations are embedded in the human-machine interfaces of the vehicle, and how that interface is largely determinative of the political and value propositions of autonomous vehicles for human ‘users’ – particularly with respect to privacy, autonomy, and responsibility. To that end, this paper introduces the analytical lens of ‘handoff’ for understanding the ramifications of the different configurations of actors and components associated with different models of autonomous vehicle futures. ‘Handoff’ is an approach to tracking societal values in sociotechnical systems. It exposes what is at stake in transitions of control between different components and actors in a system, i.e. human, regulatory, mechanical or computational. The handoff analytic tracks the reconfigurations and reorientations of actors and components when a system transitions for the sake of ‘functional equivalence’ (for instance through automation). The claim is that, in handing off certain functions to mechanical or computational systems like giving control of a vehicle to an automated system, the identity and operation of actor-components in a system change, and those changes have ethical and political consequences. Thinking through the handoff lens allows us to track those consequences and understand what is at stake for human values in the visions, claims and rhetoric around autonomous vehicles.
February 27: Cathy Dwyer — Applying the Contextual Integrity Framework to Cambride Analytica
ABSTRACT: A continuing challenge for the Digital Privacy research community has been the identification and articulation of norms regarding information flow. The Contextual Integrity Framework (CI) gives us a tool to discover these norms. An application of CI to 2,011 news articles about the Cambridge Analytica revelations of 2018 found evidence that mini-contexts could be useful in identifying norms regarding information flow that are fast-evolving and rarely articulated. These mini-contexts emerge in circumstances where norms and transmission principles are clearly expressed. I define a mini-context as a narrowly specified situation where information flow is clearly articulated and described. I call them mini-contexts, because they have a much reduced scope of relevance than broader contexts, such as those associated with the flow of medical or educational information. The political consulting firm Cambridge Analytica carried out extensive collection of personal data from Facebook, and used that data to develop predictive models of individuals in order to target political advertising during the 2016 ‘Brexit’ vote, and the US presidential election that same year. The result of this revelation was an international uproar, and spurred a global discussion about the use of personal information. From the Cambridge Analytica case, I will discuss two mini-contexts. The first is the “I Accept” mini-context. A recurring topic in the discussion around Cambridge Analytica is the degree to which individual users are themselves responsible for giving up their privacy. This context describes what information can be shared when a person clicks ‘I Accept,’ without reading the policy or terms. The second mini-context centers around the evaluation of personality types using data from online behavior. In this mini-context, there is evidence that the application of personality evaluations without explicit consent is a violation of appropriate information flows.
February 20: Ignacio Cofone & Katherine Strandburg — Strategic Games and Algorithmic Transparency
ABSTRACT: We challenge a commonly held belief in the industry, government, and academia: that algorithmic decision-making processes are better kept opaque or secret because otherwise people may “game the system,” leading to inaccurate or unfair results. We first show that the situations in which people can game the system, even with all information about the decision-process, are narrow, and we suggest how to identify such situations. This depends on the proxies used: how easy they are to fake, and whether such “faking” changes the underlying feature that is measured. We then develop normative considerations to determine, from the sub-set of situations where decision-subjects can effectively game, when does this gaming justify opacity, and when should transparency be mandated irrespective of gaming. This should depend on the social costs of false positives and false negatives and the accuracy of proxies. Proxies with very high or very low false positives and false negatives should be disclosed, and whether proxies with high false positives and low false negatives or the converse should be disclosed depends on the relative social costs of each. In such way, we show that the situations in which algorithmic secrecy is justified are much narrower than is normally assumed, and we thereby hope to advance the discussion on algorithmic transparency.
January 30: Sabine Gless — Predictive Policing: In Defense of 'True Positives'
ABSTRACT: Predictive policing has triggered a heated debate around the issue of false positives. Biased machine training can wrongly classify individuals as high risk simply as a result of belonging to a particular ethnic group and many agree such persons should not have to shoulder the burden of over-policing due to an inherent stochastic problem. This provocation however makes a case for the ‘true positives’. It claims that those who are caught red-handed, as a consequence of biased police profiling, offer the best opportunity to address the issue of biased profiling as they have a high incentive to raise the problem of discrimination during criminal proceedings. While the line of argument starts with a purely pragmatic consideration, it can be grounded on a more general reasoning of undesirability of discriminatory stops and searches as inherently unfair and a threat to social peace. To create an efficient legal tool against discriminatory law-enforcement, the defence should be entitled to contest a conviction based on biased predictive policing, with a specific exclusionary rule protecting ‘true positives’ against the use of tainted evidence.
December 5: Discussion of current issues
November 28: Ashley Gorham — Algorithmic Interpellation
November 14: Mark Verstraete — Data Inalienabilities
November 7: Jonathan Mayer — Estimating Incidental Collection in Foreign Intelligence Surveillance
October 31: Sebastian Benthall — Trade, Trust, and Cyberwar
October 24: Yafit Lev-Aretz — Privacy and the Human Element
October 17: Julia Powles — AI: The Stories We Weave; The Questions We Leave
October 10: Andy Gersick — Can We Have Honesty, Civility, and Privacy Online? Implications from Evolutionary Theories of Animal and Human Communication
October 3: Eli Siems — The Case for a Disparate Impact Regime Covering All Machine-Learning Decisions
September 26: Ari Waldman — Privacy's False Promise
September 19: Marijn Sax — Targeting Your Health or Your Wallet? Health Apps and Manipulative Commercial Practices
September 12: Mason Marks — Algorithmic Disability Discrimination
May 2: Ira Rubinstein — Article 25 of the GDPR and Product Design: A Critical View [with Nathan Good and Guilermo Monge, Good Research]
April 25: Elana Zeide — The Future Human Futures Market
April 18: Taylor Black — Performing Performative Privacy: Applying Post-Structural Performance Theory for Issues of Surveillance Aesthetics
April 11: John Nay — Natural Language Processing and Machine Learning for Law and Policy Texts
April 4: Sebastian Benthall — Games and Rules of Information Flow
March 28: Yann Shvartzshanider and Noah Apthorpe — Discovering Smart Home IoT Privacy Norms using Contextual Integrity
February 28: Thomas Streinz — TPP’s Implications for Global Privacy and Data Protection Law
February 21: Ben Morris, Rebecca Sobel, and Nick Vincent — Direct-to-Consumer Sequencing Kits: Are Users Losing More Than They Gain?
February 14: Eli Siems — Trade Secrets in Criminal Proceedings: The Battle over Source Code Discovery
February 7: Madeline Bryd and Philip Simon — Is Facebook Violating U.S. Discrimination Laws by Allowing Advertisers to Target Users?
January 31: Madelyn Sanfilippo — Sociotechnical Polycentricity: Privacy in Nested Sociotechnical Networks
January 24: Jason Schultz and Julia Powles — Discussion about the NYC Algorithmic Accountability Bill
November 29: Kathryn Morris and Eli Siems — Discussion of Carpenter v. United States
November 15:Leon Yin — Anatomy and Interpretability of Neural Networks
November 8: Ben Zevenbergen — Contextual Integrity for Password Research Ethics?
November 1: Joe Bonneau — An Overview of Smart Contracts
October 25: Sebastian Benthall — Modeling Social Welfare Effects of Privacy Policies
October 18: Sue Glueck — Future-Proofing the Law
October 11: John Nay — Algorithmic Decision-Making Explanations: A Taxonomy and Case Study
October 4:Finn Bruton — 'The Best Surveillance System we Could Imagine': Payment Networks and Digital Cash
September 27: Julia Powles — Promises, Polarities & Capture: A Data and AI Case Study
September 20: Madelyn Rose Sanfilippo AND Yafit Lev-Aretz — Breaking News: How Push Notifications Alter the Fourth Estate
September 13: Ignacio Cofone — Anti-Discriminatory Privacy
April 26: Ben Zevenbergen — Contextual Integrity as a Framework for Internet Research Ethics
April 19: Beate Roessler — Manipulation
April 12: Amanda Levendowski — Conflict Modeling
April 5: Madelyn Sanfilippo — Privacy as Commons: A Conceptual Overview and Case Study in Progress
March 29: Hugo Zylberberg — Reframing the fake news debate: influence operations, targeting-and-convincing infrastructure and exploitation of personal data
March 22: Caroline Alewaerts, Eli Siems and Nate Tisa will lead discussion of three topics flagged during our current events roundups: smart toys, the recently leaked documents about CIA surveillance techniques, and the issues raised by the government’s attempt to obtain recordings from an Amazon Echo in a criminal trial.
March 8: Ira Rubinstein — Privacy Localism
March 1: Luise Papcke — Project on (Collaborative) Filtering and Social Sorting
February 22: Yafit Lev-Aretz and Grace Ha (in collaboration with Katherine Strandburg) — Privacy and Innovation
February 15: Argyri Panezi — Academic Institutions as Innovators but also Data Collectors - Ethical and Other Normative Considerations
February 8: Katherine Strandburg — Decisionmaking, Machine Learning and the Value of Explanation
February 1: Argyro Karanasiou — A Study into the Layers of Automated Decision Making: Emergent Normative and Legal Aspects of Deep Learning
January 25: Scott Skinner-Thompson — Equal Protection Privacy
December 7: Tobias Matzner — The Subject of Privacy
November 30: Yafit Lev-Aretz — Data Philanthropy
November 16: Helen Nissenbaum — Must Privacy Give Way to Use Regulation?
November 9: Bilyana Petkova — Domesticating the "Foreign" in Making Transatlantic Data Privacy Law
November 2: Scott Skinner-Thompson — Recording as Heckling
October 26: Yan Shvartzhnaider — Learning Privacy Expectations by Crowdsourcing Contextual Informational Norms
October 19: Madelyn Sanfilippo — Privacy and Institutionalization in Data Science Scholarship
October 12: Paula Kift — The Incredible Bulk: Metadata, Foreign Intelligence Collection, and the Limits of Domestic Surveillance Reform
October 5: Craig Konnoth — Health Information Equity
September 28: Jessica Feldman — the Amidst Project
September 21: Nathan Newman — UnMarginalizing Workers: How Big Data Drives Lower Wages and How Reframing Labor Law Can Restore Information Equality in the Workplace
September 14: Kiel Brennan-Marquez — Plausible Cause
April 27: Yan Schvartzschnaider — Privacy and loT AND Rebecca Weinstein - Net Neutrality's Impact on FCC Regulation of Privacy Practices
April 20: Joris van Hoboken — Privacy in Service-Oriented Architectures: A New Paradigm? [with Seda Gurses]
April 13: Florencia Marotta-Wurgler — Who's Afraid of the FTC? Enforcement Actions and the Content of Privacy Policies (with Daniel Svirsky)
April 6: Ira Rubinstein — Big Data and Privacy: The State of Play
March 30: Clay Venetis — Where is the Cost-Benefit Analysis in Federal Privacy Regulation?
March 23: Diasuke Igeta — An Outline of Japanese Privacy Protection and its Problems
Johannes Eichenhofer — Internet Privacy as Trust Protection
March 9: Alex Lipton — Standing for Consumer Privacy Harms
March 2: Scott Skinner-Thompson — Pop Culture Wars: Marriage, Abortion, and the Screen to Creed Pipeline [with Professor Sylvia Law]
February 24: Daniel Susser — Against the Collection/Use Distinction
February 17: Eliana Pfeffer — Data Chill: A First Amendment Hangover
February 10: Yafit Lev-Aretz — Data Philanthropy
February 3: Kiel Brennan-Marquez — Feedback Loops: A Theory of Big Data Culture
January 27: Leonid Grinberg — But Who BLocks the Blockers? The Technical Side of the Ad-Blocking Arms Race
November 18: Angèle Christin - Algorithms, Expertise, and Discretion: Comparing Journalism and Criminal Justice
November 4: Solon Barocas and Karen Levy — Understanding Privacy as a Means of Economic Redistribution
October 28: Finn Brunton — Of Fembots and Men: Privacy Insights from the Ashley Madison Hack
October 21: Paula Kift — Human Dignity and Bare Life - Privacy and Surveillance of Refugees at the Borders of Europe
October 14: Yafit Lev-Aretz and co-author, Nizan Geslevich Packin — Between Loans and Friends: On Soical Credit and the Right to be Unpopular
October 7: Daniel Susser — What's the Point of Notice?
September 30: Helen Nissenbaum and Kirsten Martin — Confounding Variables Confounding Measures of Privacy
September 23: Jos Berens and Emmanuel Letouzé — Group Privacy in a Digital Era
September 16: Scott Skinner-Thompson — Performative Privacy
September 9: Kiel Brennan-Marquez — Vigilantes and Good Samaritan
David Krone — Compliance, Privacy and Cyber Security Information Sharing
Edwin Mok — Trial and Error: The Privacy Dimensions of Clinical Trial Data Sharing
Dan Rudofsky — Modern State Action Doctrine in the Age of Big Data
April 22: Helen Nissenbaum — Respect for Context' as a Benchmark for Privacy: What it is and Isn't
April 15: Joris van Hoboken — From Collection to Use Regulation? A Comparative Perspective
March 11: Rebecca Weinstein (Cancelled)
Kristen Martin — Transaction costs, privacy, and trust: The laudable goals and ultimate failure of notice and choice to respect privacy online
Ryan Calo — Against Notice Skepticism in Privacy (and Elsewhere)
Lorrie Faith Cranor — Necessary but Not Sufficient: Standardized Mechanisms for Privacy Notice and Choice
October 22: Matthew Callahan — Warrant Canaries and Law Enforcement Responses
October 15: Karen Levy — Networked Resistance to Electronic Surveillance
October 8: Joris van Hoboken — The Right to be Forgotten Judgement in Europe: Taking Stock and Looking Ahead
October 1: Giancarlo Lee — Automatic Anonymization of Medical Documents
September 24: Christopher Sprigman — MSFT "Extraterritorial Warrants" Issue
September 17: Sebastian Zimmeck — Privee: An Architecture for Automatically Analyzing Web Privacy Policies [with Steven M. Bellovin]
September 10: Organizational meeting
January 29: Organizational meeting
November 20: Nathan Newman — Can Government Mandate Union Access to Employer Property? On Corporate Control of Information Flows in the Workplace
September 25: Luke Stark — The Emotional Context of Information Privacy
September 18: Discussion — NSA/Pew Survey
September 11: Organizational Meeting
April 10: Katherine Strandburg — ECPA Reform; Catherine Crump: Cotterman Case; Paula Helm: Anonymity in AA
March 27: Privacy News Hot Topics — US v. Cotterman, Drones' Hearings, Google Settlement, Employee Health Information Vulnerabilities, and a Report from Differential Privacy Day
March 6: Mariana Thibes — Privacy at Stake, Challenging Issues in the Brazillian Context
March 13: Nathan Newman — The Economics of Information in Behavioral Advertising Markets
February 27: Katherine Strandburg — Free Fall: The Online Market's Consumer Preference Disconnect
February 20: Brad Smith — Privacy at Microsoft
February 13: Joe Bonneau — What will it mean for privacy as user authentication moves beyond passwo
February 6: Helen Nissenbaum — The (Privacy) Trouble with MOOCs
January 30: Welcome meeting and discussion on current privacy news
November 14: Travis Hall — Cracks in the Foundation: India's Biometrics Programs and the Power of the Exception
September 19: Nathan Newman — Cost of Lost Privacy: Google, Antitrust and Control of User Data