Author: Frank Pasquale

Reining in the Data Brokers

I’ve been alarmed by data brokers’ ever-expanding troves of personal information for some time. My book outlines the problem, explaining how misuse of data undermines equal opportunity. I think extant legal approaches–focusing on notice and consent–put too much of a burden on consumers. This NYT opinion piece sketches an alternate approach:

[D]ata miners, brokers and resellers have now taken creepy classification to a whole new level. They have created lists of victims of sexual assault, and lists of people with sexually transmitted diseases. Lists of people who have Alzheimer’s, dementia and AIDS. Lists of the impotent and the depressed.

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Privacy protections in other areas of the law can and should be extended to cover consumer data. The Health Insurance Portability and Accountability Act, or Hipaa, obliges doctors and hospitals to give patients access to their records. The Fair Credit Reporting Act gives loan and job applicants, among others, a right to access, correct and annotate files maintained by credit reporting agencies.

It is time to modernize these laws by applying them to all companies that peddle sensitive personal information. If the laws cover only a narrow range of entities, they may as well be dead letters. For example, protections in Hipaa don’t govern the “health profiles” that are compiled and traded by data brokers, which can learn a great deal about our health even without access to medical records.

There’s more online, but given the space constraints, I couldn’t go into all the details that the book discloses. I hope everyone enjoys the opinion piece, and that it whets appetites for the book!

Improving Lawyers’ Efficiency, the Guantanamo Way

John Patrick Leary has a great series of posts called “Keywords for an Age of Austerity.” While he hasn’t yet taken on the term “efficiency,” it’s something we hear a lot from “Legal Rebels” nowadays. I found the following passage from an interview with philosopher Johanna Oksala very insightful on one intersection between law and efficiency:

In [my book Foucault, Politics, and Violence] I [discuss] new interrogation techniques – including waterboarding – that were introduced at Guantanamo Bay detainee camp in 2002. Philip Sand shows in his book Torture Team that what made these new, considerably more aggressive interrogation techniques possible was not the suspension of international law, but an interpretation of it that made it consistent with pregiven policy aims: the effective gathering of intelligence for national security. The law was respected by the state, but it was used strategically: the policy should have been drawn up around the law, but instead the legal advice was fitted around the policy. Legality was subsumed under efficiency and professionalism.

What’s said here of government as a client applies as well in many recent situations where firms’ corner-cutting policies were taken to lawyers, who appeared far more interested in “efficient” outcomes for their employers or clients than in bounding their actions by law. They also appeared willing to fit their ideal of “professionalism” to that overriding pursuit of efficiency. So we should be a bit cautious when we hear, bandied about, terms like “efficiency,” “innovation,” “putting the client first,” et al. in discussions of the future of the profession. Scratch the surface, and you’ll often find a definition of each that is partial, self-serving, or even Orwellian.

Legal Scholarship & the University

Just a quick note to make explicit something implicit in my last post: I not only agree with Dave Hoffman’s point about the enduring value of many modes of law teaching, but also think that we could do with a lot less defensiveness about the value of legal scholarship. It is not only the case that legal theories “have fundamentally changed our thinking about the law,” as Robin West and Danielle Citron argue. There are areas of social science presently adrift either because they have not adequately incorporated key legal insights, or because attorneys and legal scholars have failed to fully engage with key controversies and ideas. And there are fields–like political economy and finance theory–now being revitalized thanks to the efforts of legal academics. Legal scholarship exists not only to help the bench and bar, but to enrich the social sciences and humanities generally.

From Piketty to Law and Political Economy

Thomas Piketty’s Capital in the 21st Century continues to spur debate among economists. It has many lessons for attorneys, as well. But does law have something to offer in return? I make that case in my review of Capital, focusing on Piketty’s call for a renewal of the social science of political economy. My review underscores the complexity of the relationship between law and social science. Legal academics import ideas from other fields, but also return the favor by informing those fields. Ideally, the process is dialectic, with lawyers and social scientists in dialogue.

At the conference Critiquing Cost-Benefit Analysis of Financial Regulation, I saw that process first hand in May. We at the Association of Professors of Political Economy and the Law (APPEAL) are planning further events and projects to continue that dialogue.

I also saw a renewed synergy between law and social sciences at the Rethinking Economics conference last month. Economists inquired about bankruptcy law to better understand the roots of the financial crisis, and identified the limits that pension law places on certain types of investment strategies.

Some of the organizers of the conference recently took the argument in a new direction, focusing on the interaction between Modern Monetary Theory (MMT) and campaign finance reform. “Leveling up” modes of campaign finance reform have often stalled because taxpayers balk at funding political campaigns. Given that private campaign funders’ return on investment has been estimated at 22,000%, that seems an unwise concession to crony capitalism. So how do we get movement on the issue?
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Announcing the We Robot 2015 Call for Papers

CommonsRobotHere is the We Robot call for papers, via Ryan Calo:

We Robot invites submissions for the fourth annual robotics law and policy conference—We Robot 2015—to be held in Seattle, Washington on April 10-11, 2015 at the University of Washington School of Law. We Robot has been hosted twice at the University of Miami School of Law and once at Stanford Law School. The conference web site is at http://werobot2015.org.

We Robot 2015 seeks contributions by academics, practitioners, and others in the form of scholarly papers or demonstrations of technology or other projects. We Robot fosters conversations between the people designing, building, and deploying robots, and the people who design or influence the legal and social structures in which robots will operate. We particularly encourage contributions resulting from interdisciplinary collaborations, such as those between legal, ethical, or policy scholars and roboticists.

This conference will build on existing scholarship that explores how the increasing sophistication and autonomous decision-making capabilities of robots and their widespread deployment everywhere from the home, to hospitals, to public spaces, to the battlefield disrupts existing legal regimes or requires rethinking of various policy issues. We are particularly interested this year in “solutions,” i.e., projects with a normative or practical thesis aimed at helping to resolve issues around contemporary and anticipated robotic applications.
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The Right to be Forgotten: Not an Easy Question

I’ve previously written on regulation of European data processing here. I’ll be presenting on the “right to be forgotten” (RtbF) in Chicago this Spring. I’ll be writing a series of posts here to prepare for that lecture.

Julia Powles offers an excellent summary of the right in question. As she explains, the European Court of Justice (ECJ) has ruled that, “in some circumstances—notably, where personal information online is inaccurate, inadequate, irrelevant, or excessive in relation to data-processing purposes—links should be removed from Google’s search index.” The Costeja case which led to this ruling involved Google’s prominent display of results relating to the plaintiff’s financial history.

Unfortunately, some US commentators’ views are rapidly congealing toward a reflexively rejectionist position when it comes to such regulation of search engine results–despite the Fair Credit Reporting Act’s extensive regulation of consumer reporting agencies in very similar situations. Jeffrey Toobin’s recent article mentions some of these positions. For example, Jules Polonetsky says, “The decision will go down in history as one of the most significant mistakes that Court has ever made.” I disagree, and I think the opposite result would itself have been far more troubling.

Internet regulation must recognize the power of certain dominant firms to shape impressions of individuals. Their reputational impact can be extraordinarily misleading and malicious, and the potential for harm is only growing as hacking becomes more widespread. Consider the following possibility: What if a massive theft of medical records occurs, the records are made public, and then shared virally among different websites? Are the critics of the RtbF really willing to just shrug and say, “Well, they’re true facts and the later-publishing websites weren’t in on the hack, so leave them up”? And in the case of future intimate photo hacks, do we simply let firms keep the photos available in perpetuity?
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Interview on The Black Box Society

BBSBalkinization just published an interview on my forthcoming book, The Black Box Society. Law profs may be interested in our dialogue on methodology—particularly, what the unique role of the legal scholar is in the midst of increasing academic specialization. I’ve tried to surface several strands of inspiration for the book.

Digital Labor & Rethinking Economics

LaborDayIt’s easy to document the degradation of work conditions in the wake of capital’s ascendance. I’ve done so for years, fully expecting that globalization would push the downward convergence of non-college-educated American workers’ living standards to that of the 73% of the global work force now living in the developing world. But I think we are in the midst of a sea change of resistance. Just listen to Belabored, an extraordinary series of podcasts on labor struggles (with plenty of print/web sources accompanying each broadcast). Or, if you’re in, or can visit, New York City, try to attend the following two conferences:

Rethinking Economics: A student-led movement, this group has an all-star line-up for a conference on Sept. 12-14. I’m particularly happy to see Philip Mirowski in the mix, as his Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown was one of my most enjoyable (and illuminating) reads this summer.

Digital Labor: This November conference will “will bring together designers, labor organizers, theorists, social entrepreneurs, historians, legal scholars, independent researchers, cultural producers and perspectives from workers themselves to discuss emerging forms of mutual aid and solidarity.” I attended the first iteration in 2009, and am on the Advisory Board for this one. It should be a fascinating event, particularly as forms of exploitation common in the “gig economy” influence large corporations.

Photo Credit: Karen Horton.

A Pithy Rendering of the New Political Economy

I remember reading Raymond Geuss’s The Idea of a Critical Theory in graduate school and finding it a clear, compelling work. Geuss reflects on the book in a recent essay, offering the following summation of our economic predicament:

What the 1980s and 1990s had in store for us. . . was the successive implementation of a series of financial gimmicks which created financial bubbles and allowed the illusion of increasing growth for the majority of the population to be maintained for a while. . . . [T]he system began to collapse in 2007 and 2008. Catastrophe was averted only by a bizarre . . . set of political interventions in the Western economies–interventions that have correctly been described as “socialism for the rich”: defaulting banks and failing industries were propped up by huge public subsidies, private debts were taken over by the state and profits continued to flow to private investors. This structure, which certainly bears no similarity whatsoever to the ways in which proponents of “capitalism” have described their favored arrangements, seems to give us the worst of all available worlds. . . .

[T]he forms of economic regulation that had been introduced during the Great Depression of the 1930s and had stood the West in good stead for over forty years were gradually relaxed or abolished during the 1980s. Social welfare systems that had gradually been developed came under pressure and began to be dismantled; public services were reduced or “privatized”; infrastructure began to crumble. Inequality, poverty and homelessness grew.

Thus the current trend of corporate profits without widespread prosperity.

One of the very few contemporary economists up to responding to these trends is Mariana Mazzucato, who teaches that any account of value extraction has to be premised on an account of value creation. I’ll be blogging on her work’s relevance to IP, tax, and other policy over the rest of the month. For now, I highly recommend her contribution to the panel “How to Change the Post-Crash Economy,” at the RSA.

The Assault on Journalism in Ferguson, Missouri

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its “reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend.” Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post’s Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

[Lowery was] illegally instructed to stop taking video of officers. Then he followed officers’ instructions to leave a McDonald’s — and after contradictory instructions on how to exit, he was slammed against a soda machine and then handcuffed. That behavior was wholly unwarranted and an assault on the freedom of the press to cover the news. The physical risk to Wesley himself is obvious and outrageous. After being placed in a holding cell, he was released with no charges and no explanation. He was denied information about the names and badge numbers of those who arrested him.

This is consistent with other anti-transparency measures in the dispute.

4) Police brutality has been a pervasive problem. We can only start a public conversation on the magnitude of the problem if people have the unfettered right to record law enforcement practices.

5) Many people have reported that police in Ferguson told them to turn off cameras and recording devices. Police refused to answer basic questions. Even major media organizations were told to leave.

6) Police tear-gassed journalists from Al Jazeera and local TV crews.

7) Local leaders are not safe, either. Both an alderman and a state senator were detained and tear-gassed.

The United States has not exactly distinguished itself in its treatment of journalists. In 2012, it fell to 47th in Reporters Without Borders’ Press Freedom Index, well behind countries like Surinam, Mali, and Slovakia, largely due to police harassment of photographers and videographers at Occupy Wall Street protests. How far should it fall if police can basically decide unilaterally to make entire cities “no First Amendment zones”? How can the US warn other countries not to “take military action against protesters,” if it allows an out-of-control force like Ferguson’s to plot a media blackout? This is a policy of order-at-all-costs, even if it means “law enforcers” breaking the law with impunity.

I will have more to say later on the underlying dispute (well covered by Mary Ann Franks and Jamelle Bouie). For now, all I can say is: we should be deeply worried about the broader campaign to create “urban battlespaces” in American cities. This is a dangerous amalgamation of police and military functions, thoughtlessly accelerated by the distribution of war-fighting equipment to local law enforcers around the country. Minimal standards of accountability require free access by the press.