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Category: Articles and Books

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Contracts in the Real World: Ready for Pre-Ordering

This new book on contracts, regaling readers with stories ripped from the headlines, will be published soon and can be pre-ordered now on amazon.com and other fine booksellers.  

Contracts in the Real World: Stories of Popular Contracts is intended to be a fun, fast, reliable read. It is very useful for 1Ls struggling with the subject, perfect for anyone thinking about going to law school, and designed to entertain devotees of pop culture. It will also captivate experts in contract law by connecting current events with venerable principles and classic cases.

Stories feature such notables as Eminem, Lady Gaga, Charlie Sheen, Donald Trump, and Sandra Bullock, as well as examples such as your cell phone contract, lottery sharing partnership, and on-line privacy policy.

List price is $33. The table of contents follows. 

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Cybersecurity Puzzles

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

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The Year in Privacy Books 2011

Here’s a list of notable privacy books published in 2011.

Previous lists:

Privacy Books 2010

Privacy Books 2009

Privacy Books 2008

 

Saul Levmore & Martha Nussbaum, eds., The Offensive Internet (Harvard 2011)

 

This is a great collection of essays about the clash of free speech and privacy online.  I have a book chapter in this volume along with Martha Nussbaum, Cass Sunstein, Brian Leiter, Danielle Citron, Frank Pasquale, Geoffrey Stone, and many others.

Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011)

 

Nothing to Hide “succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty.” — David Cole, New York Review of Books

Jeff Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live (Simon & Schuster 2011)

 

I strongly disagree with a lot of what Jarvis says, but the book is certainly provocative and engaging.

Daniel J. Solove & Paul M. Schwartz, Privacy Law Fundamentals (IAPP 2011)

 

“A key resource for busy professional practitioners. Solove and Schwartz have succeeded in distilling the fundamentals of privacy law in a manner accessible to a broad audience.” – Jules Polonetsky, Future of Privacy Forum

Eli Pariser, The Filter Bubble (Penguin 2011)

 

An interesting critique of the personalization of the Internet.  We often don’t see the Internet directly, but through tinted goggles designed by others who determine what we want to see. 

Siva Vaidhyanathan, The Googlization of Everything (U. California 2011)

 

A vigorous critique of Google and other companies that shape the Internet.  With regard to privacy, Vaidhyanathan explains how social media and other companies encourage people’s sharing of information through their architecture — and often confound people in their ability to control their reputation.

Susan Landau, Surveillance or Security? The Risk Posed by New Wiretapping Technologies (MIT 2011)

 

A compelling argument for how designing technologies around surveillance capabilities will undermine rather than promote security.

 


Kevin Mitnick, Ghost in the Wires (Little Brown 2011)

 

A fascinating account of the exploits of Kevin Mitnick, the famous ex-hacker who inspired War Games.  His tales are quite engaging, and he demonstrates that hacking is often not just about technical wizardry but old-fashioned con-artistry.

Matt Ivester, lol . . . OMG! (CreateSpace 2011)

 

Ivester created Juicy Campus, the notorious college gossip website.  After the site’s demise, Ivester changed his views about online gossip, recognizing the problems with Juicy Campus and the harms it caused.  In this book, he offers thoughtful advice for students about what they post online.

Joseph Epstein, Gossip: The Untrivial Pursuit (Houghton Mifflin Harcourt 2011)

 

A short engaging book that is filled with interesting stories and quotes about gossip.  Highly literate, this book aims to expose gossip’s bad and good sides, and how new media are transforming gossip in troublesome ways.

Anita Allen, Unpopular Privacy (Oxford 2011)

 

My blurb: “We live in a world of increasing exposure, and privacy is increasingly imperiled by the torrent of information being released online. In this powerful book, Anita Allen examines when the law should mandate privacy and when it shouldn’t. With nuance and thoughtfulness, Allen bravely tackles some of the toughest questions about privacy law — those involving the appropriate level of legal paternalism. Unpopular Privacy is lively, engaging, and provocative. It is filled with vivid examples, complex and fascinating issues, and thought-provoking ideas.”

Frederick Lane, Cybertraps for the Young (NTI Upstream 2011)

 

A great overview of the various problems the Internet poses for children such as cyberbullying and sexting.  This book is a very accessible overview for parents.

Clare Sullivan, Digital Identity (University of Adelaide Press 2011)

 

Australian scholar Clare Sullivan explores the rise of “digital identity,” which is used for engaging in various transactions.  Instead of arguing against systematized identification, she sees the future as heading inevitably in that direction and proposes a robust set of rights individuals should have over such identities.  This is a thoughtful and pragmatic book, with a great discussion of Australian, UK, and EU law.

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New Edition of Information Privacy Law Casebooks

The new edition of my casebook, Information Privacy Law (4th edition) (with Paul M. Schwartz) is hot off the presses.  And there’s a new edition of my casebook, Privacy, Information, and Technology (3rd edition) (with Paul M. Schwartz).   Copies should be sent out to adopters very soon.  If you’re interested in adopting the book and are having any difficulties getting a hold of a copy, please let me know.

You also might be interested in my concise guide to privacy law, also with Paul Schwartz, entitled Privacy Law Fundamentals.   This short book was published earlier this year.  You can order it on Amazon or via IAPP.  It might make for a useful reference tool for students.

 

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The PII Problem: Privacy and a New Concept of Personally Identifiable Information

My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here’s the abstract:

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.

In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.

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The Month Ahead: Spies, Lies, Russia, and Terrorist Watchlists

It’s great to be back at Concurring Opinions (and thanks to Danielle for the generous (re)introduction last week).  This month, I plan to blog on a few ongoing projects and some upcoming news events.  Here are two topics soon to come, with two more after the break.

(1)  Spies.  Immigration authorities seize a suspected spy in Manhattan on the grounds that he entered the country unlawfully.  Rather than process him through the immigration system, or transfer him to the criminal justice system, he is secretly flown more than a thousand miles away, interrogated without a lawyer, and kept virtually incommunicado for almost seven weeks in a government facility on the Texas-Mexican border.  When he doesn’t break, he is transferred back to New York to be tried in federal court for a capital offense.  The evidence from his warrantless arrest and secret detention helps to convict him. 

When did this happen?

No surprise that the story resonates with our national security debates today.  But it all happened during the Eisenhower Administration.  Rudolf Abel was the top Soviet spy in North America before he was convicted of atomic espionage.  Thanks to his lawyer, his life was spared (and he was later exchanged for U-2 pilot Francis Gary Powers).  I think that there are lessons to be learned from this history today, but mine seems to be the minority view.

(2)  Lies.  Okay, not lies exactly, but pretext.  (You try rhyming pretext with anything.  You’ll wind up perplexed, if not vexed, with the text that comes next.)  Pretextual use of the law is all around us.  The most common example is the law governing arrests.  In Whren v. United States, the Supreme Court unanimously agreed that the police were free to do “under the guise of enforcing the traffic code what they would like to do for different reasons,” namely, stop and search Whren’s car for drugs.  Abel’s case (referenced in Whren) presented another classic instance of pretext: his detention for an immigration violation was used for the unintended purpose of counterespionage, neatly skirting in the process constitutional protections against warrantless searches and seizures, not to mention official disappearances.  When Abel’s able lawyer argued pretext, however, the Supreme Court sustained the conviction.

Sometimes the law abhors pretext.  For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose.  How should citizens regard the pretextual use of the law by state officials?  Does such use tend to weaken the rule of law in ways that should matter to us as individuals or as a society?  When tempted to use a law for an unintended purpose, how should the “good” official distinguish an innovative pretextual use from a destructive one?  The Supreme Court dodged these questions just last term in Ashcroft v. Al-Kidd and I’d like to think hard about why.

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No More Fire, the Water Next Time

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

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Nothing to Hide: The False Tradeoff Between Privacy and Security

I’m pleased to announce the publication of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011).  Here’s the book jacket description:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can’t we have both?

In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.

This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument.   The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.

The primary focus of NOTHING TO HIDE is on critiquing common pro-security arguments.  I’ve given them nifty names such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument,” among others.  I also discuss concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

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Choosing Book Publishers: Academic, Teaching or Trade?

Where to publish your latest book-length manuscript?  Law professors can position their books for publication in many different ways.  The target audience and a publisher’s program are the key factors in choosing a publisher. 

Do you want to reach students, teachers, scholars, policy-makers, the general public?  What publishers best target which groups?  Are they all equally good at marketing or are some more effective than others? 

Often it is clear where the book should  be published but sometimes a book straddles the markets, posing vexing decisions.  How do professors choose then?

Some books are clearly meant for the classroom, and should be published by the likes of Aspen, Foundation, Lexis or West.  Within that cohort, houses further distinguish between adoptables, targeted to professors who require the book, and discretionary student purchases, for supplemental reading.  

Other books are obviously written for a specialized academic market and should  be published by such university presses as Cambridge, Harvard, NYU or Stanford.  A small number undoubtedly show greater potential trade market appeal, and could be published by such houses as John Wiley, McGraw-Hill, Penguin or Random House.  

But what of the book that transcends one or more of these audiences, positions, and publishing programs?  Is it possible that some houses can deliver it all, as many authors say is true of such presses as Oxford, Princeton, Yale?

In particular, I have spent this past year writing a book on contract law stories in the news during the past several years.  Readers of this blog would recognize a dozen or more of them.  Read More