Setting Standards for Fair Information Practice in the U.S. Private Sector

The confluence of plans for an Information Superhighway, actual industry self-regulatory practices, and international pressure dictate renewed consideration of standard setting for fair information practices in the U.S. private sector. The legal rules, industry norms, and business practices that regulate the treatment of personal information in the United States are organized in a wide and dispersed manner. This Article analyzes how these standards are established in the U.S. private sector. Part I argues that the U.S. standards derive from the influence of American political philosophy on legal rule making and a preference for dispersed sources of information standards. Part II examines the aggregation of legal rules, industry norms, and business practice from these various decentralized sources. Part III ties the deficiencies back to the underlying U.S. philosophy and argues that the adherence to targeted standards has frustrated the very purposes of the narrow, ad hoc regulatory approach to setting private sector standards. Part IV addresses the irony that European pressure should force the United States to revisit the setting of standards for the private sector

Privacy and Brain-Computer Interfaces

The research described in this thesis draws on three distinct fields: privacy, brain-computer interfaces (BCIs), and critical theory (specifically, Habermas’s Theory of Communicative Action). There are two aims. The first is to identify whether BCIs disrupt privacy, and if so, how. The second is to contribute methodological observations and insights. In meeting the first aim, two subjects are explored: privacy and BCIs. In this research, privacy is understood to take diverse and pliant forms and to be mutually instrumental in the formation of other social values and social contexts. Social contexts may be disrupted by emerging technologies, such as BCIs, which may then disrupt privacy. Brain-Computer Interfaces (BCIs) are a group of emerging technologies that interpret someone’s neural activity in order to provide control of external devices. In the literature, it has been suggested that BCIs may disrupt privacy. To the extent that privacy perpetuates other social values, this project has an emancipatory intent which places the research within the purview of critical theory. Critical theory encompasses a broad range of research practices. The research reported here applies a novel method informed by features of Habermas’s Theory of Communicative Action (TCA) which was triangulated by an implementation of contextual integrity approach to studying privacy. As the TCA component of the research method is novel, the second research aim is feasible: the contribution of methodological observations and insights. A review of the literature identifies five relevant privacy concepts and four types of BCI. These are orthogonally positioned such that twenty different contexts of potential privacy disruption are considered. These contexts form hypotheses for the project’s first research question: do BCIs disrupt privacy? The method produced both quantitative and qualitative data, within which 35 indications were identified. These indications culminated in 6 knowledge contributions in the form of 2 findings, 1 design recommendation, and 3 methodological recommendations. The research data indicate that BCIs disrupt privacy because BCIs disrupt agency, fairness, self-determination, autonomy, justice, power, and to lesser extents, other values. Design and methodological recommendations are made before concluding the thesis with discussions of the potential social impact of this research, options for future research, and learning outcomes

Comments of the Cordell Institute for Policy in Medicine & Law at Washington University in St. Louis

The Federal Trade Commission—with its broad, independent grant of authority and statutory mandate to identify and prevent unfair and deceptive trade practices—is uniquely situated to prevent and remedy unfair and deceptive data privacy and data security practices. In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all share data concerning ourselves with these platforms, often unwittingly, and we leave ourselves at the risk of their manipulation and control. The Commission envisions “[a] vibrant economy fueled by fair competition and an empowered, informed public.”1 But, this vision cannot be realized in the absence of meaningful consumer trust. Trust is the oxygen necessary for consumer choice to survive. Where trust is present, consumers are empowered to invest in companies and share their data knowing they are not going to be betrayed, manipulated, deceived, or treated unfairly. But where trust is weakened or absent, the marketplace breaks down and becomes a fertile ground for the development of market failures that are contrary to the interests of consumers and competition. Recognizing the importance of trust in digital markets, our comments are organized around three arguments: (i) commercial surveillance is the correct label for the data practices observed in the market; (ii) notice and choice, centered around the fiction of consumer consent, has failed as a regulatory regime; and (iii) the Commission should ground its future data privacy rules in concepts of trust, loyalty, and relational vulnerability

Supreme Court Opinion Authorship Attribution on a Case-by-Case Basis

This thesis analyzes the authorship of Supreme Court opinions and the theory that Justices on that Court might be delegating portions, if not the majority, of opinion authorship to their clerks. I test the theories that as Justices age they are more likely to delegate, and that delegation has increased across all justices over the past several decades of the Court’s history. I employ a content analysis method known as stylometry to assign authorship attributions on a case by case basis and use those attributions to inform larger trends regarding authorship. I ultimately find that there is little evidence to support the age or time-period theories but that there is significant variation across Justices in attribution, indicating that clerks are likely playing a large and measurable role in opinion drafting

Beyond Lawrence: Metaprivacy and Punishment

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill\u27s On Liberty – and communitarian – William Eskridge has described it as the gay rights movement\u27s Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence\u27s jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call metaprivacy : When societal consensus internalizes a breach of the historical legal divide between particular conduct and an associated status, punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence\u27s legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible indeed, almost constitutionally required-moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it

Taxing Privacy

In the United States, many low-income citizens are being held to a harsher standard than wealthier citizens — these low-income citizens are being asked to relinquish their privacy in order to obtain the public assistance they need, whereas wealthier individuals are not subjected to similar levels of public scrutiny for government benefits that they claim. Giving up privacy can have devastating effects on individuals’ lives — they may suffer various dignitary harms, may experience repressed abilities to express themselves, and may even be coerced into important life decisions by the government. This situation presents a unique problem to the neediest in our society: they can either give up their privacy in order to receive benefits they are otherwise eligible for, or they can retain their private lives and suffer an economic burden in the amount of the foregone benefits. This choice may not seem outrageous to many in the United States, but it presents a serious issue for our society. Under the current system of public benefits administration, we ask a vulnerable segment of our citizenry to surrender significantly more information about themselves to their communities and to the government than we ask of any other segment, and it is not clear that valid justifications for this system exist. Many have researched the effects of various procedural requirements for receiving various forms of public assistance. This Article follows that research and contrasts the economic effects of those requirements on eligible individuals who forego their benefits with the privacy harms created by those requirements for those who submit to them. Government actors must consider this balance to ensure that the burden we put on those receiving public assistance is fair and efficient. By considering that balance differently — through the lens of taxation — this Article hopes to shed light on a disturbing situation and to help frame the discussion for potential reform