Madison on The Republic of Letters and the Origins of Scientific Knowledge Commons @profmadison @pittlawfaculty

Michael J. Madison, University of Pittsburgh School of Law, is publishing The Republic of Letters and the Origins of Scientific Knowledge Commons in Governing Privacy as Commons (M. Sanfilippo, K.J. Strandburg, and B. M. Frischmann, eds., Cambridge University Press, 2020). Here is the abstract.

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.

Download the essay from SSRN at the link.

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.

Surveillance and Fiction

Sam Frank discusses how surveillance leads to "noveliz[ation of] our lives." He suggests turning to literature to understand this phenomenon--specifically to novels such as Joshua Cohen's Book of Numbers, Dave Eggers' The Circle, or the classic The Trial, by Franz Kafka. More here at The Intercept.

Privacy, Security, and Literature

Daniel Solove (George Washington University Law School) is compiling a list of privacy and security related novels. His first five selections?

Franz Kafka, The Trial (published in 1925 in German, first English translation published in 1937).

George Orwell, Nineteen Eighty-Four (or 1984) (published 1949).

Aldous Huxley, Brave New World (1932).

Herman Melville, Billy Budd (first published 1924, but written in 1888-1891, and left unfinished at Melville's death).

Heinrich Böll, The Lost Honor of Katharina Blum (published in 1974, first English translation 1974).

Professor Solove invites you to email suggestions to him or to post them in the comments section.

U. S. Privacy Law After One Hundred Twenty Years

Robert Sprague, University of Wyoming, College of Business, Kevin Grauberger, University of Wyoming, and Nicole Barberis, Bloomberg LP, have published One Hundred Twenty Years of U.S. Privacy Law Scholarship: A Latent Semantic Analysis. Here is the abstract.

This paper reports results from a research project aimed at identifying fundamental privacy law principles derived from the writings of legal scholars and commentators using probabilistic topic modeling, which is comprised of a suite of algorithms that attempt to discover hidden thematic structures in large archives of documents. Topic modeling algorithms are statistical methods that analyze the words of texts to discover topics (themes) contained within, how those topics are connected to each other, and how they change over time. A latent Dirichlet allocation process, which identifies sets of terms that more tightly co-occur, is incorporated into the topic modeling analysis to identify words most closely associated with each identified topic. The latent Dirichlet allocation therefore provides insight into the context in which each identified topic occurs. Our analysis reveals that privacy law in the United States comports most closely with the Georgia Supreme Court’s 1905 description of privacy from the seminal case Pavesich v. New England Life Insurance Company: “the right of a person to be secure from invasion by the [government or] public into matters of a private nature.”

Download the paper from SSRN at the link.

Data Collection, Data Breaches, and Star Wars

Dan Solove (George Washington Law, Teach Privacy) points out that the Empire might have defeated the Rebel Alliance had it mastered data collection. Think about the data breaches in Star Wars alone. Dr. Solove also notes something that has always bothered me: Ben Kenobi is not exactly a great alias when your actual name is Obi Wan Kenobi ("this is not the Jedi Warrior named Kenobi you're looking for. Move along, move along.")

Now, Luke's sister Leia was, I believe, living under an alias: she had been adopted after her mother died in childbirth. So it's possible that the Empire (and Darth Vader) did not know who she was at the beginning of Star Wars, especially if she had a new birth certifcate and the government of Alderaan sealed her adoption records. However, Vader certainly knew who Luke was, since he lived with his uncle (Vader's brother). At any rate, an entertaining look at information privacy, data collection, and Big Data in a Very Big Film Franchise.

A History of the Privacy Profession

Andrew Clearwater, University of Maine School of Law, and J. Trevor Hughes, International Association of Privacy Professionals, have published In the Beginning...An Early History of the Privacy Profession, at 74 Ohio State Law Journal 897 (2013). Here is the abstract. 

Privacy is a concept that has existed in various forms and degrees, for much of human history. However, the origin of information privacy as a compliance, risk management, and operational concern has been much more recent. This new field, and the professionals who work within it — the privacy profession — did not exist broadly until the past decade. From essentially no active professionals in the 1970s and 1980s, the privacy profession has grown to at least 13,000 people working on managing information privacy within their organizations. As the information economy continues to grow — pushed by the breath-taking speed of technological development, cloud computing, big data, and emerging uses for exponentially increasing stores of data — it is reasonable to expect that the privacy profession will grow. The exact trajectory of the privacy profession is difficult to predict. Management of privacy is, today, a well-established and important function, and it is obvious that the professionals who work in this field will grow in number and prominence in the coming years.
Without knowing where we’ve come from, we can’t know where we are going and so it is appropriate for us to document the nascent years of the privacy profession. We expect that, at some point in the future, scholars will seek to understand how the field of privacy management emerged, who served as a catalyst for the growth of the field, and what the important milestones for the privacy profession were as the turbulence of the early days of the information economy played out. While this history is most certainly global — the privacy profession has its earliest roots in Germany in the 1970s — we have chosen to investigate this change where we understand it best and where the profession has appeared to grow the most, the United States. We have also limited our focus to the role of the privacy professional and privacy lawyer. There are certainly public policy leaders and advocates in the privacy field who deserve well-documented histories. Through these lenses, we offer a history of privacy becoming a profession.

Download the article from SSRN at the link. 

New Star Trek Film Folks Will Unveil App To Encourage Faithful Fans

Love Star Trek (particularly the reboot of the franchise)? Love your smart phone? Now you can indulge your affection for both with a Star Trek Into the Darkness app, which will be available, according to the Hollywood Reporter, at the end of this month. Says THR's Aaron Couch,

A smartphone app for fans anticipating J.J. Abrams’ upcoming Trek sequel will launch at the end of this month and will allow users to go on Starfleet-esque missions by inputting audio-visual elements into their phones....For example, a fan could watch the Into Darkness trailer on TV, and the app's audio tool would hear it and might reward its user with points toward unlocking a new Star Trek image or wallpaper. The app's geolocation tool might reward fans for going to a movie theater, while those who snap a photo of an Into Darkness poster could earn points toward unlocking a video.

The ultimate prize? A trip to see the premiere of the film. Sounds just a little interactively high tech-ily obsessive to me, but then only about ten people even have my cell phone number. 

The Ick Factor

Britta Van Beers, VU University Amsterdam Faculty of Law, has published TV Cannibalism, Body Worlds and Trade in Human Body Parts: Legal-Philosophical Reflections on the Rise of Late Modern Cannibalism, at 4 Amsterdam Law Forum 65 (2012). Here is the abstract.

In December, 2011 two Dutch TV presenters ate pieces of each other’s flesh in front of a live television audience. Despite the obscurity of this cannibalistic episode in television history, the matter touches on a series of complex legal and philosophical questions that are discussed in this article, such as the boundaries of criminal law, the legal limits of personal autonomy and law’s changing relation to the biological aspects of life. Moreover, through its analysis of the arguments involved, this article offers legal-philosophical reflection on the role of taboos in legal approaches to the human body and derived materials.

Download the article from SSRN at the link. 

"Nothing To Hide"

Daniel J. Solove, George Washington University Law School, has published the first chapter of Nothing to Hide: The False Tradeoff between Privacy and Security (Yale University Press, 2011). Here is the abstract.

"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 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.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - 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" - have skewed law and policy to favor security at the expense of privacy.

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. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses 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.

Download the text from SSRN at the link.

Dan Solove's New Book Makes Its Debut

Daniel Solove's new book Nothing To Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011) is now available. Here's a 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.

Although the publication date reads May 31, I've already received my copy.

Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.