Authoritarian Privacy

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first discusses several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together, they tell only a partial story. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. The party-state did not enact privacy law despite its surveillance state; it embraced privacy law to maintain it. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy

Green Colonialism: Sidelined While on the Front Lines

The United Nations General Assembly recently unanimously adopted a resolution recognizing the “right to a clean, healthy and sustainable environment as a human right.” in July, 2022. ... The resolution was heralded by U.N. Environment Programme (UNEP) Executive Director Inger Andersen as a “victory for people and the planet,” and it was described as a catalyst for action by U.N. Special Rapporteur on Human Rights and the Environment David Boyd. ... Boyd went on to say that the resolution could encourage States “to enshrine the right to a healthy environment in . . . constitutions and regional treaties.”... This short essay examines this resolution as it relates to Indigenous peoples worldwide, but with a particular focus on Native Nations in the United States. Despite the landmark nature of the resolution’s recognition of the right to a healthy environment, significant questions remain about methods of implementation and of engaging Indigenous peoples, participation by Indigenous peoples in that process, and the possibility of competing interests between Indigenous peoples and environmental protection

The protection against unfair competition and passing off in ASEAN Member States: a review and commentary

This article offers a brief review of the protection against unfair competition in the Member States of the Association of South-East Asian Nations (ASEAN). More specifically, it highlights ASEAN’s different legal systems and how ASEAN Members, respectively, implement Article 10bis of the Paris Convention under national unfair competition or laws against passing off based on their respective legal system—Civil Law, Common Law and hybrid systems. Ultimately, this article notes that, despite these different legal systems, ASEAN Members share close similarities in their national implementation of Article 10bis of the Paris Convention. The article concludes that these similarities are not surprising considering the shared history of several ASEAN Members and the fact that all these countries (with the exception of Myanmar) are signatories to the major international IP agreements

Theorizing Constitutional Change in East Asia

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to understand whether fundamental constitutional change only occurs through crisis or whether it can also take place gradually by layering new ideational components onto old programmatic ideas, repurposing them to new uses. Drawing on case studies about eminent domain in Japan, Indonesia and China, the Article concludes that although crisis can trigger fundamental change in any political system, incremental reforms are more likely to promote fundamental change where governments are accountable to the public through constitutional courts and/or democratic elections

The Use of Clearview AI to Support Warrants Violates the Fourth Amendment

Social media platforms encouraged millions of Americans to post hundreds of photos of themselves on the Internet. Clearview AI, a tool that harnesses “publicly available” online images for facial recognition, violated those platforms’ terms of service to collect those photos and in doing so de-anonymized millions of Americans. This Note examines the Fourth Amendment implications of law enforcement’s use of Clearview AI and its compatibility with constitutional protections. This Note argues that the use of Clearview AI by police to support warrant applications runs afoul of established legal standards by analyzing the evolution of Fourth Amendment jurisprudence in light of technological advancements. The foundation of the argument is twofold: first, that the current jurisprudential landscape has increasingly recognized the need to adapt constitutional protections to the digital age, acknowledging the unique capabilities of digital surveillance to bypass traditional privacy safeguards; and second, that Clearview AI embodies a form of digital surveillance that is particularly invasive due to its comprehensive and indiscriminate collection of personal data. This Note delves into how Clearview AI’s capabilities trigger the very concerns the Fourth Amendment intends to protect against—preventing law-abiding citizens from being put in a perpetual police line-up without probable cause or judicial oversight

Global Product Liability for Dumb ‘Smart’ Home Devices

The number of smart homes globally has increased to 300 million, and the smart home market is expected to reach approximately $181.4 billion by 2025. These new developments, however, are accompanied by related security risks. The attack surface for smart home devices poses latent dangers because of inadequate security that enables cybercriminals to gain access to such devices. This Article proposes extending product liability to address security vulnerabilities in smart home devices. Part I examines the ubiquity of smart home devices. Part II sets forth the breadth of security vulnerabilities in connected devices, confirming the need to clarify that product liability applies to software and to create a global standard that reduces compliance costs for smart home device makers. Part III develops a detailed global standard for smart home device product liability, aligning U.S. product liability law with the proposed revision of the European Union’s Product Liability Directive 85/374/EEC