Solove on Notable Privacy Books: A Journal Through History

Daniel J. Solove, George Washington University Law School, has published Notable Privacy Books: A Journey Through History. Here is the abstract.

In this essay, I discuss notable privacy books from the 1960s to 2020s – seven decades and more than 400 books. I briefly explain why each book is noteworthy. Examining the books chronologically also opens a window into history, as the books reflect the concerns, ideas, and terminology of the times in which they were written. The books also shed light on the discourse about privacy, which has evolved over the decades. In the past few decades, attention to privacy issues has significantly increased, and the number of books has proliferated. The books involve many perspectives, fields, and approaches: philosophical, journalistic, sociological, legal, literary, anthropological, political, empirical, psychological, and historical.

Download the article from SSRN at the link.

Solove and Hartzog on Kafka in the Age of AI and the Futility of Privacy as Control @DanielSolove @hartzog @gwlaw @BU_Law @BULawReview

Daniel J. Solove, George Washington Law School, and Woodrow Hartzog, Boston University Law School, Stanford Law School Center for Internet and Society, are publishing Kafka in the Age of AI and the Futility of Privacy as Control in volume 104 of the Boston University Law Review. Here is the abstract.

Although writing more than a century ago, Franz Kafka captured the core problem of digital technologies – how individuals are rendered powerless and vulnerable. During the past fifty years, and especially in the 21st century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data. In this Essay, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of artificial intelligence. In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves. Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, people will often blame themselves. Kafka’s provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control.

Download the article from SSRN at the link.

Call For Papers: Applied Feminism and Privacy, Twelfth Feminist Legal Theory Conference, April 2-3, 2020

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Twelfth Feminist Legal Theory Conference. We hope you will join us for this exciting conference on April 2 and 3, 2020. The theme is Applied Feminism and Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. Dr. Leana Wen, President and CEO of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund, will deliver the Keynote.

CALL FOR PAPERS APPLIED FEMINISM AND PRIVACY

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Twelfth Feminist Legal Theory Conference. We hope you will join us for this exciting conference on April 2 and 3, 2020. The theme is Privacy. As always, the conference focuses on the intersection of gender and race, class, gender identity, ability, and other personal identities. We are excited that Dr. Leana Wen, President and CEO of the Planned Parenthood Federation of America and the Planned Parenthood Action Fund, has agreed to serve as our Keynote. We are at a critical time for a broad range of privacy issues. State level abortion bans have put a spotlight on the importance of decisional privacy to women’s equality. Across America, advocates are fighting for reproductive justice and strategizing to preserve long-settled rights. At the same time, our informational privacy is increasingly precarious. Data brokers, app designers, and social media platforms are gathering and selling personal data in highly gendered ways. As a result, women have been targeted with predatory marketing, intentionally excluded from job opportunities, and subject to menstrual tracking by marketers and employers. In online spaces, women have been objectified, cyber-stalked, and subject to revenge porn. With regard to physical privacy, the structural intersectionality of over-policing and mass incarceration impacts women of color and other women. And while a man’s home may be his castle, low-income women are expected to allow government agents into their homes – and to turn over reams of other personal information -- as a condition of receiving state support. In addition, families of all forms are navigating the space of constitutionally-protected family privacy in relation to legal parentage, marriage and cohabitation, and child welfare systems. We seek submissions of papers that focus on the topic of Applied Feminism and Privacy. We will interrogate multiple aspects of privacy, including its physical, decisional, informational, and family dimensions. This conference aims to explore the following questions: Is privacy dead, as often claimed? If so, what does this mean for women? How can privacy reinforce or challenge existing inequalities? How has feminist legal theory wrestled with privacy and what lessons can we draw from past debates? What advocacy will best advance privacy protections that benefit women? How do emerging forms of surveillance impact women? Can intersectional perspectives on privacy lead to greater justice? Who defines the “right to privacy” and what do those understandings mean for women? How is privacy related to other values, such as autonomy, anti-subordination, vulnerability, justice, and equality? We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. The Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public. To submit a paper proposal, by Friday, November 1, 2019, please complete this form and include your 500 word abstract: https://forms.gle/k4EPNLaYmEvo4KHUA We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review, our co-sponsor for this conference. Thus, the form requests that you indicate if you are interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. The decision about publication rests solely with the Law Review editors, who will communicate separately with the authors. For all presenters, working drafts of papers will be due no later than March 20, 2020. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

Hu on Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test

Margaret Hu, Washington and Lee University School of Law, is publishing Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test in the Washington Law Review. Here is the abstract.

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. A cybersurveillance nonintrusion test implicitly suggested by the Supreme Court in United States v. Jones first shifts the vantage point of the Fourth Amendment analysis from an individual-based tangible harm inquiry to an inquiry of a society-wide intangible harm — whether the modern surveillance method creates a “1984 problem” for society. A cybersurveillance nonintrusion test requires the government to justify the intrusion of the surveillance on society. A new test would remediate increasingly ineffective Fourth Amendment jurisprudence currently grounded in property and tort law. The Article argues that the adoption of a cybersurveillance nonintrusion test and the abandonment of the current privacy test is not only required; but, in practice, is already used by the federal courts.

Download the article from SSRN at the link.

Thompson on The Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation @marcelothompson

Marcelo Thompson, University of Hong Kong Faculty of Law, is publishing The Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation in Law, Obligation, Community (Daniel Matthews and Scott Veitch, eds., Routledge, 2018). Here is the abstract.

Contemporary critical legal studies scholarship pays heed to a perspective of materiality in law that jurisprudence more generally has tended to overlook. In keeping with a broader “nonhuman turn” in the humanities and the social sciences, this growing body of scholarship has been observing the passage of law through nonhuman realms. But how wide – and how indiscriminately – can the legal bond cast the net of its dignity? Is not the dignity of law rather connected with human subjectivity in deep and indissociable ways? This paper seeks to contribute to the debate above by querying the quintessential realm where law and human subjectivity intertwine – i.e. privacy. Questioning into the origin of the force of privacy obligations enables us to see its inherent connection with the origin of the force of law itself, and to draw important conclusions from this connection.

Download the essay from SSRN at the link.

Tilburg University Seeks Applicants For Postdoctoral Research Position in Criminal Law and Privacy @TilburgU

Tilburg University is advertising a post-doctoral position in criminal law and privacy, starting date September 1, 2017. More details here.

A New Play About Roe v. Wade Opens In Washington D.C.

Richard Harris writes for Slate about a new play opening in Washington, D.C. that's based on the historic Roe v. Wade decision. The playwright, Lisa Loomer (Girl, Interrupted) had anticipated that when Roe opened, the President would be Hillary Clinton and the political atmosphere would be much more friendly to the work's subject matter. More here.

More about the play and its playwright here (from the New York Times) and here (from Ms. magazine). 

Galic, Timan, and Koops on Bentham, Deleuze, and Beyond: An Overview of Surveillance Theories From the Panopticon to Participation

Maša Galič, Tjerk Timan, and Bert-Jaap Koops, all of Tilburg University, Tilburg Institute for Law, Technology, and Society, have published Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation at Philos. Technol. (2016), DOI: 10.1007/s13347-016-0219-1. Here is the abstract.

This paper aims to provide an overview of surveillance theories and concepts that can help to understand and debate surveillance in its many forms. As scholars from an increasingly wide range of disciplines are discussing surveillance, this literature review can offer much-needed common ground for the debate. We structure surveillance theory in three roughly chronological-thematic phases. The first two conceptualise surveillance through comprehensive theoretical frameworks, which are elaborated in the third phase. The first phase, featuring Bentham and Foucault, offers architectural theories of surveillance, where surveillance is often physical and spatial, involving centralised mechanisms of watching over subjects. Panoptic structures function as architectures of power, not only directly but also through (self-)disciplining of the watched subjects. The second phase offers infrastructural theories of surveillance, where surveillance is networked and relies primarily on digital rather than physical technologies. It involves distributed forms of watching over people, with increasing distance to the watched and often dealing with data doubles rather than physical persons. Deleuze, Haggerty and Ericson, and Zuboff develop different theoretical frameworks than panopticism to conceptualise the power play involved in networked surveillance. The third phase of scholarship refines, combines, or extends the main conceptual frameworks developed earlier. Surveillance theory branches out to conceptualise surveillance through concepts such as dataveillance, access control, social sorting, peer-to-peer surveillance, and resistance. With the datafication of society, surveillance combines the physical with the digital, government with corporate surveillance, and top-down with self-surveillance. 

Download the article from SSRN at the link.

Daniel Solove @DanielSolove As a Character In a Play About Privacy

Is this a first? A real life law prof is a character in a theatrical production. We've had Supreme Court Justices in opera (Ruth Bader Ginsburg and Antonin Scalia in Derrick Wang's Scalia/Ginsburg). And we've see real law profs depicted in films and tv movies: Alan Dershowitz in Reversal of Fortune and various OJ docudramas (and Gerald Uelman of Santa Clara School of Law as well).

But now George Washington Law Faculty member Daniel Solove is a character in Privacy, curently in a run at the Public Theater through August 14th. The work, written by James Graham, and starring Daniel Radcliffe, is an update of Mr. Graham's 2014 play and featuring topical references, focusing on the issues of privacy in a world increasingly concerned about the line between public and personal personas. Other real life characters in the play include Sherry Turkle, well known social science and media tech prof at MIT.  The reviewer makes comparisons with the world of magic performance, which is interesting as well. He notes that a desire to honor the star's request for secrecy about the play's twists and turns keeps him from revealing much about its specifics, although let's face it: there's a difference between secrecy and privacy. But let's go with the desire to limit exposure, if only to keep the fun going. Shades of Agatha Christie's Witness for the Prosecution and The Mousetrap.

More here from the GW Law website,  here from the New York Times.

Sanders on Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War

Anthony B. Sanders, Institute for Justice, is publishing Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War in the Mercer Law Review. Here is the abstract.

Although there is controversy on the original meaning of the Ninth Amendment, there should be no controversy on the original meaning of Ninth Amendment analogs in state constitutions, otherwise known as the “Baby Ninths.” This Article examines the history of the states’ adoption of Baby Ninths before the Civil War. It includes an analysis of the parallel history of what I call “Baby Tenths,” state constitutional provisions exempting state bills of rights out of the power of government. From these, and other, sources I demonstrate that Baby Ninths only make sense as judicially enforceable provisions that protect unenumerated individual rights.

Download the article from SSRN at the link.

Cohen on Artistic Freedom, Privacy, and Literature

Nili Cohen, Tel-Aviv University, is publishing Love, Story, Law – From the Scarlet Letter to Freedom and Privacy in volume 28 of Law and Literature (2016). Here is the abstract.

What are the limits of artistic freedom? How beholden is literature to truth? How confined is literature by truth? What should be the fate of a book relating the love affair between an older married man and a young woman, with close accuracy, so much so that the young woman could be identified by distant acquaintances despite the pseudonyms? An Israeli Supreme Court case rendered a few years ago ruled that the publication of the book would harshly violate the woman’s privacy, while non-publication would moderately injure the author’s artistic freedom. Hence the publication of the book was prohibited and the author was liable to compensate his former lover in the sum of NIS 200,000. The triangle of Love-Story-Law is obviously not a unique Israeli matter. Similar stories raise universal hot debates. The Israeli case took an extreme stand compared with other legal systems. The statement “There are norms for which it is worth even losing a few ‘good books’” raises concerns about the enforcement of the right to privacy as an oblique way of imposing censorship on grounds of morality. The controversial judgment begs the question of its potential value as a precedent. Alternative balancing between the competing rights, some binary, some distributive, which have been adopted in German and American case law, reflect normative decisions along the axis through freedom of action, artistic freedom, privacy and conservatism. But apart from the question of balancing conflicting rights, our love story reveals a whole set of changing values which will be historically scrutinized, starting from Nathaniel Hawthorne’s story The Scarlet Letter. Both stories reflect changing normative, cultural and legal perceptions of the freedom to love, and of the power to control the exposure of love in public. The fate in life and literature of protagonists of intimate stories of this kind exhibits a history of a reversal of social-legal perceptions. Policing of personal intimacy gradually gives way to a loosening of sexual fetters and more freedom. At the same time control of publication on the public level yields to lifting the ban on circulation of obscene matter and entrenchment of practically unlimited freedom of expression. State responsibility for policing of such publications gives way to the individual’s bearing the burden of preventing publication of matters that might harm one's dignity, reputation and privacy. The courthouse that was once open to all, even for hearings on intimate family details, now offers protection of names and of identifying details of litigants followed by the closure of its doors to the public for hearings on personal matters. And finally the Platonic perception of art as dangerous and false imitation, to be hidden away, is replaced by the requirement of hiding art away because of the truth in it.

The full text is not available from SSRN.

Rethinking Privacy Using Feminism--and Spinoza

Janice Richardson, Monash University Faculty of Law, is publishing Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy in volume 22 of Feminist Legal Studies (2014). Here is the abstract.

In this article I explore the usefulness of Spinoza’s ethics for feminism by considering ways in which it allows feminists to rethink privacy. I draw upon some of Spinoza’s central ideas to address the following question: when should information be classed as private and when should it be communicated? This is a question that is considered by the common law courts. Attempts to find a moral underpinning for such a tortious action against invasions of privacy have tended to draw upon Kant’s categorical imperative. In contrast, I want to consider how Spinoza provides an immanent ethics that reconfigures how privacy is understood.

Download the article from SSRN at the link.

"Mr. Robot", Technology, Privacy, and Security

Corey Nachreiner reviews every episode of Mr. Robot at Geekwire; his take on the latest episode is here.  Dan Solove gives his view of the series, complete with analysis of privacy and security issues, here.