Fall 2020: via zoom Fridays 2:30-4:00pm
December 4: Florencia Marotta-Wurgler & David Stein
November 20: Andrew Weiner
November 13: Cancelled for Northeast Privacy Scholars Workshop
October 30: Ari Ezra Waldman — Privacy Law's Two Paths
October 23: Aileen Nielsen — Tech's Attention Problem
ABSTRACT: The plasticity of human preferences and behavior is a readily accepted proposition in economics and psychology. Within this domain of plasticity is the experimentally demonstrated fact that humans likely have only a certain number of “mental cycles” per day with which to make decisions and defend their interests. This poses particularly compelling problems related to human privacy and autonomy in an era where we increasingly spend our time in digital environments that are privately owned and engineered to maximize the utility of the entities who own that infrastructure. This work makes an argument in four part in response to the private infrastructure that drive our digital attention economies. First, I discuss how human attention is under attack in the digital sector, fueled by scientific knowledge from psychology and economics, and also show how the resulting attention harms routinely fail to achieve legal recognition and protection. Second, I propose a taxonomy of simple metrics that can be used with both scientific justification and conceptual simplicity to operationalize metrics for attention in common digital products. Third, I experimentally measure likely marketplace reactions to these metrics in a realistic scenario relating to mobile apps. Finally, I examine a variety of regulatory and policy measures that could be implemented with such attention metrics. In proceeding in these parts, I make the case that there are practical but insufficiently explored options to quantify and regulate pervasive consumer harms in digital attention economies.
October 16: Caroline Alewaerts — UN Global Pulse
ABSTRACT: UN Global Pulse is the UN Secretary-General’s initiative on big data and artificial intelligence (AI) for sustainable development, humanitarian action, and peace. It was established a decade ago based on a recognition that digital data offer opportunities to gain a better understanding of changes in human well-being, and to get real-time feedback on how well policy responses are working. UN Global Pulse has since been expanding the boundaries of its research and policy work, ensuring close alignment with the transformative innovation efforts of the Executive Office of the Secretary-General in which it operates. In this presentation, I will provide an overview of UN Global Pulse technology and policy work both within and outside of the UN, and how it is working to accelerate the discovery, development and adoption of privacy-protective and rights-based big data and AI applications that can transform how we operate and help communities everywhere achieve the Sustainable Development Goals (SDGs).
October 9: Salome Viljoen — Data as a Democratic Medium: From Individual to Relational Data Governance
ABSTRACT: Discussions about personal data often involve claims (explicit or implicit) regarding what data is or is “like,” why we should care about its collection, and what we should do about datafication—the transformation of information about people into a commodity. This Article evaluates the legal merit of these claims via their empirical and normative consequences. To do so, it engages with two enduring problems vexing U.S. data governance. First, the “sociality problem”: how can data governance law better account for the downstream social effects of data collection? Second, the “legitimacy problem”: how can data governance law distinguish legitimate and illegitimate downstream uses without relying on the failed mechanism of individual notice and choice? Part One documents the significance of data processing for the digital economy and evaluates how the predominant legal regimes that discipline data collection—contract and privacy law—code data as an individual medium. This conceptualization is referred to throughout the Article as “data as individual medium” (DIM). Part Two explores the disconnect between DIM and how the data political economy produces social value and social risk. First it shows that data’s capacity to transmit social relational meaning is central to how data produces economic value and social risk, yet is legally irrelevant under DIM. Part Three evaluates two prominent proposals that have emerged in response to datafication: propertarian and dignitarian reforms to data governance. While both approaches have merit, because they conceive of data as an individual medium they are unable to resolve either the sociality problem or the legitimacy problem. Part Four proposes an alternative approach: data as a democratic medium (DDM). DDM fosters data governance that is attentive to data’s social effects as well as to the purposes that drive data production and the conditions under which it occurs. Part Four concludes by outlining key principles and directions for what DDM regimes could look like in practice.
October 2: Gabe Nicholas — Surveillance Delusion: Lessons from the Vietnam War
ABSTRACT: Surveillance systems allow states to “see” into the lives of individuals. Sometimes that vision is an illusion — other times it is a delusion. In this paper, I offer a case study of one such delusional surveillance system: Operation Igloo White, a sensor-software system built in 1968 by the US Air Force to track and bomb North Vietnamese supply lines in the Laotian jungle. Through technical documentation, declassified military histories, and original interviews with veterans, I argue that the Air Force overlooked, ignored, or hid a preponderance of evidence that Igloo White failed to accurately “see” what was happening on the ground. The US government tricked itself, willfully or otherwise, into believing its surveillance system was effective. I call this phenomenon surveillance delusion. State surveillance systems are particularly susceptible to delusion because unlike surveillance capitalist systems, they have no profit motive to be accurate. As James Scott argues, modern states use surveillance to make citizens “legible” in order to govern society by scientific principles. This imperative depends not on accurate observation but the stringent, invisible categorization of individuals. Harms of surveillance delusion are thus externalized to the surveilled. Part One of this paper defines surveillance delusion and contextualizes it in the broader surveillance studies literature on dataism and datafication. Part Two gives a case study of Operation Igloo White and describes three areas in which it failed to “see”: data integrity, or how well a sensor measures an intended ground truth; data quality, or how well a metric works for its intended purpose; and data politics, or how control over data allocates power. Part Three explains how the Air Force deluded itself about these blindnesses. Part Four reconsiders three modern domestic surveillance systems through the lens of delusion — app-based contact tracing, predictive policing, and the US-Mexico border wall.
September 25: Angelina Fisher & Thomas Streinz — Confronting Data Inequality
ABSTRACT: Data conveys significant social, economic, and political power. For this reason, unequal control over data – a pervasive form of digital inequality – is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This paper takes some steps in this direction by analyzing the extent to which extant law facilitates unequal control over data and by suggesting ways in which legal interventions might lead to more equal control over data. The paper distinguishes between unequal control over data as an asset on the one hand and unequal control over the infrastructures that generate, process, storage, transfer, and use data, on the other hand. We hypothesize that the former is a function of the latter. Existing law tends to ignore the salience of infrastructural control over data and seeks to regulate data as an object to be transferred, protected, and shared. Private law technologies are dominant in this regard while states increasingly bind themselves under international economic law to not redistribute or localize control over data. While there are no easy solutions to the problem of data inequality, we suggest that retaining flexibility to experiment with different approaches, demanding enhanced transparency, pooling of data and bargaining power, and differentiated and conditional access to data mechanisms may help in confronting data inequality going forward. We begin the paper by considering how data is conceptualized. Here we highlight two broad discourses: one sees data as an asset or resource that creates value for different entities (e.g., enterprises, communities, countries, etc.). The other sees data as not “a natural kind” but rather a relational and contextual concept that is shaped by assemblages of digital infrastructures, social and organizational practices, histories and ideologies, and legal instruments, practices, and institutions. We bring these two discourses together to illustrate (a) the relationship between data (as an output) and the infrastructures that constitute it (“data infrastructures”) and (b) examine specific inequalities that flow from unequal control over data infrastructures. We highlight the outsized role of commercial enterprises in control over data infrastructures with reference to e-commerce, communication and IoT data management platforms. We also consider the role that cloud computing plays in centralizing infrastructural control. (Part I) Having presented the problematique with which the paper is concerned, we turn to the role of legal technologies. Here we consider (a) to what extent different legal regimes and instruments in their current approaches to regulation of data facilitate, entrench or simply ignore infrastructural control and (b) how law can be deployed to address the type of data inequality we identify in the paper. We posit that to do the latter, the regulation of data through law needs to move away from conceptualizing data-as-an-asset and instead focus on regulating data infrastructures. (Part II) In the concluding part, we put forth some interventions that might usefully be deployed to address data inequality. Although proposals in this section apply to a variety of actors and contexts, our primary audience here are policy makers in developing countries. Our suggestions include a mix of legal, technical and political interventions, urging contextual, experimental, and flexible approaches. These include requirements for transparency, pooling of political power, building up bottom up data governance arrangements that provide differentiated and conditional access to data, and leveraging international organizations as international data governors. (Part III)
September 18: Danny Huang — Watching loTs That Watch Us: Studying loT Security & Privacy at Scale
ABSTRACT: Many consumers today are increasingly concerned about IoT security and privacy. There is much media hype about home cameras being hacked or voice assistants eavesdropping on conversations. However, it is unclear exactly what are security and privacy threats, how prevalent they are, and what are the implications on users, policymakers, and manufacturers, because there is no reliable large-scale data in the wild. In my talk, I'll describe a new method to systematically collect a large-scale real-world dataset of IoT device network traffic. I'll show you examples of security and privacy threats we identified on various IoT devices, along with a discussion on the potential legal issues.
September 11: Seb Benthall — Accountable Context for Web Applications
ABSTRACT: We consider the challenge of accountable privacy, fairness, and ethics for web applications. We begin with a case for studying specific software architectures. Computer science paradigms have come under disciplinary criticisms from STS and engineering disciplines. These criticisms are diffused by introducing realistic and general models from software engineering. We find that some of the criticisms of computer science literature, especially against the use of formalism, misplaced and instead better understood as limits imposed by the design of the web and web services. The design of the web is to maximize connectivity and minimize control: this entails that web resources are exposed indiscriminately to myriad social contexts. The design of web services (e.g. REST) is to allow for "anarchic scalability" and "independent deployability" across multiple, and shifting, organizational boundaries. We find this networked, relational, inter-organizational nature of web services to be an otherwise unaddressed reason for poor accountability of computer systems. We propose a system of labeling and documentation for web applications that would remedy this opacity.
April 29: Aileen Nielsen — "Pricing" Privacy: Preliminary Evidence from Vignette Studies Inspired by Economic Anthropology
ABSTRACT: Despite the widespread existence and economic significance of digital markets in which personal data is bought, sold, and collected by commercial firms, it is far from clear that a market pricing approach to privacy best describes current attitudes towards personal data. Likewise, it's not clear that any solution to existing privacy problems represented by such data markets will be aptly addressed through the provision of legal rights to personal data where such rights are framed in terms of economic control and entitlements. Here, I present preliminary pilot studies inspired by economic anthropology to explore whether and to what degree market paradigms may be unduly limiting the conversation regarding legal remedies to privacy problems.
April 22: Ginny Kozemczak — Dignity, Freedom, and Digital Rights: Comparing American and European Approaches to Privacy
ABSTRACT: Federal courts in the U.S. generally agree that Internet Protocol (IP) addresses are not subject to Fourth Amendment protection. An Internet user’s 32-digit anonymous number is largely considered unprotectable under the Third-Party Doctrine, for which there is no requirement that the government obtains a warrant. At the same time, the European Court of Justice and the European Court of Human Rights have issued decisions holding that, in certain contexts, IP addresses are protectable, private data for which a warrant is required – relying on Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights respectively. This paper proposes a new framework to explain why American and European privacy protections of IP addresses diverge, moving beyond a dichotomous model of dignity and liberty, as some comparative privacy law literature suggests. Instead, I present a model that attempts to capture societal expectations of how privacy laws ought to function in relation to governments and the private sector.
April 15: Privacy and COVID-19 Policies
ABSTRACT: As coronavirus has spread across the globe, how should policymakers and citizens think about privacy issues? The student fellows will start with a brief review of different policy and tech responses to the virus followed by some framing questions and then an open discussion. Questions will include: Is there a necessary tradeoff between the efficacy of public health responses and privacy? How do we think about and evaluate tradeoffs? How do we balance privacy against freedom of movement and other values? What are appropriate transnational responses?
April 8: Ira Rubinstein — Urban Privacy
ABSTRACT: As Alan Westin observed in Privacy and Freedom, “Anonymity occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.” Most accounts of anonymity so understood are submerged within discussions of the Fourth Amendment under the rubric of “privacy in public.” These accounts reconsider the “plain view” and “third party” doctrines in light of the evolution from sense enhancing technologies to smartphones, GPS, and the Internet of Things, with the goal of extending constitutional protections to new forms of surveillance. Missing from these accounts is any consideration of public places and their character or function in city life—that is, how the public realm works, what it contributes to urban experience, and why cities have (or should have) an interest in preserving the public realm against a variety of countervailing forces including surveillance. In the public realm, strangers of diverse backgrounds and behavior encounter and learn to tolerate one another and this occurs (at least in part) because they are free from identification and surveillance. This Essay develops an account of privacy in public that emphasizes the public realm and people’s efforts to manage the boundaries between themselves and the strangers they encounter when they are out in public. This is what I mean by “urban privacy” and I will argue that the need for urban privacy provides city government with a separate and distinct set of interests for resisting surveillance as compared with the usual Fourth (and First) Amendment interests cited in most discussions. In two earlier papers, I have analyzed “privacy localism” and (with Bilyana Petkova) cities as privacy activists and data stewards. This Essay is part of a larger project to understand privacy in the city. It brings together two closely aligned intellectual traditions that have surprisingly little scholarly interaction: urban studies (sociology and ethnography) analyzing the city as a social order composed of multiple realms or territories with their own norms and informal rules (Goffman, Lofland, Jacobs, Sennett); and privacy as boundary management (beginning with Altman and later refined by Nippert-Eng, Cohen and Kaminski). This Essay proceeds as follows: first, I analyze the public realm as a social territory (descriptive) that is generative of urban diversity and tolerance (normative). Next, I reconstruct the idea of privacy in public as a form of boundary management. This is followed by a discussion of smart city surveillance technologies (IoT, public Wi-Fi, smartphone apps, policing devices, big data analytics), their uses (optimization, efficiency, surveillance), and their impact on city life. Finally, I consult multiple sources to determine if there is any evidence of a detrimental impact on the public realm. This includes empirical studies of CCTV in London (the city that symbolizes the urban panopticon) as well indirect evidence in accounts of smart cities, in popular culture, and in preliminary reviews of the Chinese social credit system. This Essay then draws some tentative conclusions.
April 1: Thomas Streinz — Data Governance in Trade Agreements: Non-territoriality of Data and Multi-Nationality of Corporations
ABSTRACT: The US has pioneered provisions in recent ‘trade’ agreements promoting the cross-border transfer of data (‘free data flows’) while constraining states’ ability to require the use of domestic computing facilities (‘data localization’). These provisions feature in the Trans-Pacific Partnership (TPP) agreement, from which the US later withdrew but that the remaining eleven members revived as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), in the US-Mexico-Canada agreement (USMCA), and, most recently, in the dedicated Japan-US Digital Trade Agreement (JUSDTA). While these agreements are ostensibly only binding for the Parties that have signed and ratified them, in reality, multi-national corporations will be able to avail themselves of the prerequisite corporate nationality to force countries towards uniform and open transnational data governance regimes - in contrast to the EU's preferred model of differentiated transnational data governance (distinguishing between countries with and without an "adequate" level of data protection). The paper discusses the implications for data governance in trade agreements and for global data governance more broadly. Thanks to all of you for indulging me with another paper on data governance and international economic law. I very much enjoyed the PRG discussion of my paper on TPP's model for the global digital economy (published as "Digital Megaregulation Uncontested?" in our volume "Megaregulation Contested: Global Economic Ordering After TPP"). This paper is a continuation of this prior work and also heavily influenced by our Global Data Law project in the Guarini Global Law & Tech initiative with Benedict Kingsbury and Angelina Fisher.
March 25: Christopher Morten — The Big Data Regulator, Rebooted: Why and How the FDA Can and Should Disclose Confidential Data on Prescription Drugs
ABSTRACT: Medicines are complex products, and it is often extraordinarily difficult to know whether they cure or kill. The FDA holds an enormous reservoir of data on these medicines, data that sheds light on that precise question, and yet the agency currently discloses only a trickle to researchers, doctors, patients, and the public at large. This paper explains why and how the FDA can and should “reboot” its disclosure rules to disclose much more data on safety and efficacy of prescription drugs, to protect patients, advance science, and safeguard democracy. Though the need for this data is clearer than ever, last Term a Supreme Court case threatened the viability of one existing tool through which independent researchers have historically obtained clinical data from the FDA: Freedom of Information Act (FOIA) requests. We present a wealth of new evidence about the urgency of the problem together with a novel argument for proactive data disclosure—what we term “data publicity”—that can be achieved without any legislative reform. We provide a roadmap to data publicity that navigates the two main challenges to data sharing: protecting the privacy of individuals who participate in trials and defeating the claims that companies make that this data is and should remain confidential. Along the way, we show that trade secrecy law does not create an impossible barrier to disclosure, contrary to the view of the pharmaceutical industry. Our analysis illuminates a broader problem that is woven through the regulatory state in our information age: corporations urge us to buy their products and services because they are technologically innovative, yet increasingly they hide the inner workings of those technologies from us. The model we offer here could, we suggest, become a template for other regulatory agencies to permit meaningful democratic oversight of industry and revitalize the agencies themselves in an age of information capitalism.
March 4: Lilla Montanagni — Regulation 2018/1807 on the Free Flow of Non Personal Data: Yet Another Piece in the Data Puzzle in the EU?
February 26: Stein — Flow of Data Through Online Advertising Markets
ABSTRACT: "I'll be presenting on the flow of data through online advertising markets, how advertisers use that data to generate revenue, and what some of the emerging trends are in the space. The presentation is from a technologist's perspective and contains no normative claims. I'm hoping to spark a discussion on which, if any, parts of the "ad-tech" ecosystem have avoided regulatory and scholarly scrutiny."
February 19: Seb Benthall — Towards Agend-Based Computational Modeling of Informational Capitalism
ABSTRACT: Interlinked concerns of privacy, security, fairness, accountability, and transparency motivate active research in both technical design and public policy. Whereas the design of information systems and the state and corporate governance were once separable concerns, today technology is part of governance. Theories of society or the economy that do not include the role of computation in society are incomplete, as are theories of the implications of technology that are removed from socioeconomic context. The [very preliminary!] research reviews the state of agent-based computational modeling as a social scientific method. Computation is endogenous to computational modeling. Such models may be used to better understand information capitalist institutions such as platforms and data refineries. This talk considers the promise and challenges of such an approach.
February 5: Jake Goldenfein & Seb Benthall — Data Science and the Decline of Liberal Law and Ethics
ABSTRACT: The advent and application of data science has opened a new domain of normative inquiry. Often this inquiry is framed in terms of liberal ethics in places, such as Western democratic states, where liberalism is the basis of legal institutions. Liberalism, as a political and ethical framework, and as expressed in law, theorizes that rational individuals, endowed with private autonomy and property, can achieve legitimate distributional outcomes by exchanging goods in free and public markets. Three ways liberal data science ethics attempts to solve the ethical challenges of data science include: reinforcing privacy with data protection, preventing the undermining of individual rationality through manipulation, and considering the relationship between data and property. However, data science has resulted in a normative crisis because it contradicts assumptions of liberalism. Data science reveals that rationality is bounded and limited by data access, challenging liberalism’s concept of individual moral subjectivity. Corporate rationalities employ data science to create privatized markets that defy liberal market theory, with questionable distributional legitimacy. We argue that data science therefore necessitates ethics and regulation beyond what liberal theory can offer.
January 29: Albert Fox Cahn — Reimagining the Fourth Amendment for the Mass Surveillance Age
ABSTRACT: Fourth Amendment doctrine plays a diminishing role in protecting privacy in the mass surveillance age, as technological changes outstrip doctrinal advancements, and greater reliance is placed on statutory, regulatory, and private sector privacy protections. Crucially, these technological advancements have eroded the most potent historical barrier to surveillance, cost. As economically-driven particularity fades, doctrinally-driven particularity must increase to maintain the status quo level of privacy protections. I assert that in expanding constitutional protections, we will need to change one of the unspoken assumptions of prior holdings. Historically, Fourth Amendment holdings delineate searches based on whether or not a type of surveillance required the unique force of the state (e.g., physical searches, wiretaps, etc.). Doctrines like the Third-Party Doctrine and Plain View Doctrine curtail warrant requirements based on whether or not a member of the public could have accomplished the alleged search without state action. But I claim the Court’s 2018 holding in Carpenter v. U.S. is an inflection point where we see Fourth Amendment protections extend to searches that could be carried out by the general public. These changes necessitate a fundamental shift in doctrine, and I suggest that potential models could be (1) reasonable expectation part II, which is triggered by use, not collection, of data; (2) Minimization; (3) Differentiating counter-terrorism use and admissibility at trial; (4) Expanded Title III-style requirements for invasive technologies; and (5) categorical bans for highly-invasive technologies.
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.
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
April 17: Andrew Selbst — Negligence and AI's Human Users
April 10: Sun Ping — Beyond Security: What Kind of Data Protection Law Should China Make?
April 3: Moran Yemini — Missing in "State Action": Toward a Pluralist Conception of the First Amendment
March 27: Nick Vincent — Privacy and the Human Microbiome
March 13: Nick Mendez — Will You Be Seeing Me in Court? Risk of Future Harm, and Article III Standing After a Data Breach
March 6: Jake Goldenfein — Through the Handoff Lens: Are Autonomous Vehicles No-Win for Users
February 27: Cathy Dwyer — Applying the Contextual Integrity Framework to Cambride Analytica
February 20: Ignacio Cofone & Katherine Strandburg — Strategic Games and Algorithmic Transparency
January 30: Sabine Gless — Predictive Policing: In Defense of 'True Positives'
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