Category: Articles and Books

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Olde Fields, New Corn, and an Inscription

hlscrest.pngI have always been facinated by the confrontation between James I and Chief Justice Edward Coke over the nature of the common law. The king asserted the right to dictate the law because, he reasoned, law was simply the expression of natural reason and the king’s reason was as good as the judges. Coke responded by conceding that the law was reason, but insisted that it was an “artificial reason” that could only be gained by deep study and long experience. Coke’s response is cryptic, and historians of greater learning than I have lavished a great deal of attention on what precisely he meant in context. I take it, however, that Coke is claiming that rules built up in the law over the centuries represent a well of experience and wisdom that exceeds what we might acquire by rational construction on a tabula rasa. As it happens I am a big fan of the common law, and I tend to have more faith in judicial caususitry than in a priori philosophical speculations. In some sense, I believe in the artificial reason of the law.

Hence, I was fancinated when I ran across Felix Frankfurter’s dedication in his 1930 book The Labor Injunction. He wrote, “To Mr. Justice Brandeis, for whom law is not a system of artificial reason, but the application of ethical ideals, with freedom at the core.” The shifts in jurisprudential world views crammed into that inscription is really quite impressive. There is also a wonderful irony in the fact that Frankfurter no doubt penned these words at the Harvard Law School, which is of course covered with the law school’s crest on which are prominently displayed sheaves of wheat. The sheaves are an allusion to Coke and another of his maxims on the law: “From olde fields, springs forth new corn.” The dirt of experience and history imagined by Coke, however, strike me as quite different — less ethereal and celestial — than the “ethical ideals” for which Frankfurter praised Brandeis.

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Privacy’s Other Path

confidential5a.jpgProfessor Neil Richards (Washington University School of Law) and I have posted on SSRN our new article, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Georgetown Law Journal __ (forthcoming 2007). The article engages in an historical and comparative discussion of American and English privacy law, a topic that has been relatively unexplored in America.

Although the tort law of privacy in America and England arose from the very same common law cases, the law has developed on very different paths in each country. For example, in England, a friend, spouse, lover, or nearly anybody else who violates a confidence can be liable. In America, people are said to assume the risk of betrayal for many breaches of confidence; the law, however, protects against the invasion of privacy by strangers. How and why did the law develop so differently in America and England? Our new article explores the answers to these questions and debunks many myths in the conventional wisdom about privacy law.

You can download and read the article for free on SSRN. If you don’t like it, we provide a full money-back guarantee. With a deal like this, how can you lose?

Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis “invented” the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s “inviolate personality.” English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

We welcome any comments and suggestions for the article.

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The Myth of the Superuser

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Everybody knows that the Internet is teeming with super-powerful and nefarious miscreants who are almost impossible to stop and who can cause catastrophic harms. If you need proof, simply pick up any newspaper or watch any “hacker” movie. The problem is, what everybody knows is wrong. Or, at least so I argue in my most recent article, The Myth of the Superuser: Fear, Risk, and Harm Online, which I have posted to SSRN and submitted to a law review intake inbox near you. Here’s the abstract:

Fear of the powerful computer user, “the Superuser,” dominates debates about online conflict. This mythic figure is difficult to find, immune to technological constraints, and aware of legal loopholes. Policymakers, fearful of his power, too often overreact, passing overbroad, ambiguous laws intended to ensnare the Superuser, but which are used instead against inculpable, ordinary users. This response is unwarranted because the Superuser is often a marginal figure whose power has been greatly exaggerated.

The exaggerated attention to the Superuser reveals a pathological characteristic of the study of power, crime, and security online, which springs from a widely-held fear of the Internet. Building on the social science fear literature, this Article challenges the conventional wisdom and standard assumptions about the role of experts. Unlike dispassionate experts in other fields, computer experts are as susceptible as lay-people to exaggerate the power of the Superuser, in part because they have misapplied Larry Lessig’s ideas about code.

The experts in computer security and Internet law have failed to deliver us from fear, resulting in overbroad prohibitions, harms to civil liberties, wasted law enforcement resources, and misallocated economic investment. This Article urges policymakers and partisans to stop using tropes of fear; calls for better empirical work on the probability of online harm; and proposes an anti-Precautionary Principle, a presumption against new laws designed to stop the Superuser.

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Kahan on the illiberal state

Dan Kahan has written another fascinating piece developing his long-running discussion about the predicament of liberalism. Moving from criminal law, which he covered in his well known piece, The Secret Ambition of Deterrence Talk, he takes on risk regulation. This time, though, he does so in light of recent research into cultural cognition (research on which, I should disclose, Kahan and several other folks around the country – including myself – are collaborating). If you haven’t read his prior work in this area, well, you should.

On another note, this will be my last post. Thanks to Concurring Opinions and all the readers!

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Book Art

What happens when nerds and art collide? Book art. The National Museum of Women in the Arts in DC is having a really cool exhibit on it:

The Book as Art: Twenty Years of Artists’ Books from the National Museum of Women in the Arts explores the sometimes controversial art form that is artists’ books. Defined as art objects in the form of books, artists’ books combine content and form to create something that is more than a simple container for information. To celebrate the twentieth anniversary of the National Museum of Women in the Arts (NMWA), The Book as Art will feature 108 artists’ books, by 86 artists, from 12 countries, culled from the museum’s collection of more than 800 volumes.

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You can see some of the books at the museum’s website. I sure hope I can stop by to see the exhibit, but right now, alas, I’m staring at a stack of exams. Perhaps I could donate the stack (ungraded of course) to the museum with the title: “Hours of Pain.” Under one interpretation, the artwork would serve as a depiction of the students’ pain in taking the exam. But others might see it as representing my impending pain in grading the exams. I’m sure my dean would understand, as I’d be doing it for the sake of art. . . .

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Neil Richards on Information Privacy

richards-neil.jpgProfessor Neil Richards of Washington University Law School has posted on SSRN his recent essay, The Information Privacy Law Project, 94 Geo. L.J. 1087 (2006). He reviews my book, The Digital Person, and offers an interesting and insightful critique. Although he takes issue with some of my arguments and with the term “privacy,” I find his review to be mostly a friendly amendment rather than an attack. Here’s the abstract:

One of the most interesting developments in privacy law literature over the past few decades has been the emergence of “The Information Privacy Law Project,” a group of scholars focused on the legal issues raised by the increasing collection, use, and disclosure of personal information made possible by evolving digital technologies. These scholars have sought to establish “information privacy law” as a field of study distinct from the constitutional right to “decisional privacy.” This Essay uses the recent publication of a major work by Daniel J. Solove, The Digital Person: Privacy and Technology in the Digital Age, as a lens through which to assess two aspects of the accomplishments and potential of the Information Privacy Law Project. First, it argues that although “information privacy law” may be a useful shorthand to describe a subset of legal issues associated with the use and abuse of personal information, The Digital Person itself reveals that there are enough doctrinal, historical and theoretical linkages between informational and decisional privacy law that the two are ultimately analytically indistinct. Nevertheless, this conceptual confusion can be an opportunity for the Information Privacy Law Project, as insights drawn from decisional privacy could possibly supply solutions to some of the Information Privacy Law Project’s most intractable problems. Second, this Essay argues that The Digital Person’s assertion that the problems of personal databases are best understood by reference to Franz Kafka’s The Trial obscures a more powerful insight that problems of databases are problems of power and consumer protection. Nevertheless, such an attention to the importance of metaphor in this context reveals that thinking of the database problem as one of “privacy” limits the law’s ability to respond imaginatively. It would be far better, the Essay concludes, to engage in an effort to conceive of these problems as implicating “data protection law” or “confidentiality law” than to rely so much upon the notoriously slippery, baggage-laden, and limiting concept of “privacy.”

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The Digital Person: Now in Paperback

digital-person-1.jpgI’m pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Links to reviews of the book are at The Digital Person website.

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Judge Posner’s Not a Suicide Pact

posner-book1.jpgI’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.

Before I began reading Posner’s book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:

In his new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency,” Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

I do not share Lithwick’s enthusiasm. Posner’s book struck me as a very broad defense of the Bush Administration’s policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.

Posner begins by arguing for a “living Constitution,” which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner’s living Constitution argument:

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .

I agree with Posner on the point about the living Constitution. Posner’s point is that like it or not, the Constitution is already a living Constitution: “So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written.” (p. 19). The problem with Posner’s arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Posner argues that the threat of terrorism is very grave: “The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II.” (p. 3). Really? As I’ve argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I’m wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.

Posner makes a straw man out of civil libertarians, who he claims “are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency.” (p. 41). Why not take on the more nuanced civil libertarians, who don’t have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don’t assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn’t engage in his particular cost-benefit analysis as unpragmatic and absolutist.

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A Reply to Ann Bartow’s Response to A Taxonomy of Privacy

I was excited to discover that Professor Ann Bartow (U. South Carolina School of Law) has written a response to my article, A Taxonomy of Privacy. In my article, I attempt to provide a framework for understanding the manifold different harms and problems that fall under the rubric of “privacy.” I endeavor to shift away from the rather vague label “privacy” and to prevent distinct harms and problems from being conflated or not recognized. I set forth a taxonomy of sixteen different yet related types of activities that create privacy problems: (1) surveillance; (2) interrogation; (3) aggregation; (4) identification; (5) insecurity; (6) secondary use; (7) exclusion; (8) breach of confidentiality; (9) disclosure; (10) exposure; (11) increased accessibility; (12) blackmail; (13) appropriation; (14) distortion; (15) intrusion; (16) decisional interference.

Bartow’s primary criticism is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy doesn’t have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

Most privacy harms, however, lack dead bodies. Of course, there are exceptional cases such as the murders of Rebecca Shaeffer and Amy Boyer (both killed when their stalkers obtained their personal information to track them down). But the bottom line is that there isn’t a lot of death and gore in privacy law. One could certainly trot out some exceptional horrific cases such as Shaeffer and Boyer, but these are not typical of most privacy harms. Privacy is much more than just “feelings of unease,” as I tried to spell out in the paper, even if it doesn’t involve oozing blood, financial ruin, or outrageous humiliation. I believe that it is important not to exaggerate the harms by cherry picking the most egregious cases.

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Privacy, Information, and Technology

Spinoff Cover 2e.jpgMy new casebook, PRIVACY, INFORMATION, AND TECHNOLOGY (ISBN: 0735562548) (with Marc Rotenberg & Paul M. Schwartz) is now hot off the presses from Aspen Publishers. It is an abridged version (300 pages) of our regular casebook, INFORMATION PRIVACY LAW

(2d ed.), which is about 1000 pages in length.

Privacy, Information, and Technology is designed as a supplement to courses and seminars in technology law, information law, and cyberlaw. It will provide between 2-4 weeks of coverage of information privacy issues pertaining to technology, government surveillance, databases, consumer privacy, and government records.

More information about the book is here. If you’re interested in getting a review copy of the book, please send an email to Daniel Eckroad.

The book will sell for $35 and can be purchased on Aspen’s website.

The book consists of four chapters. Chapter 1 contains an overview of information privacy law, its origins, and philosophical readings about privacy. Chapter 2 covers issues involving law enforcement, technology, and suveillance. Chapter 3 focuses on government records, databases, and identification. Chapter 4 covers business records, financial information, identity theft, privacy policies, anonymity, data mining, and government access to private sector data.

The full table of contents is available here.