Quality Disclosure and Certification: Theory and Practice

This essay reviews the theoretical and empirical literature on quality disclosure and certification. After comparing quality disclosure with other quality assurance mechanisms and describing a brief history of quality disclosure, we address three key theoretical issues: (i) Why don't sellers voluntarily disclose through a process of "unraveling?" (ii) When should government mandate disclosure? and (iii) Do certifiers necessarily report unbiased and accurate information? We further review empirical evidence on these issues, with a particular focus on healthcare, education, and finance. The empirical review covers quality measurement, the effect of third party disclosure on consumer choice and seller behavior, as well as the economics of certifiers.

After Snowden: Regulating Technology-Aided Surveillance in the Digital Age

Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state\u27s citizens for their inability to enjoy the rights and privileges we know to be essential to a liberal democracy. The reality, of course, is that this is our state-with one minor wrinkle. The United States does not directly compel us to share all of the above intimate information with it. Instead, it relies on private sector companies to collect it all, and then it takes it from them at will. We consent to share all of this private information with the companies that connect us to the intensely hyperlinked world in which we now live through our smart phones, tablets, and personal computers. Our cell phones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send emails, we share the addressing information, subject line, and content with the internet service provider. When we search the web or read something online, we reveal our interests to the company that runs the search engine. When we purchase anything with a credit card, we pass on that information to the credit card company. In short, we share virtually everything about our lives--much of it intensely personal-with some private company. It is recorded in an easily collected, stored, and analyzed digital form. We do so consensually, at least in theory, because we could choose to live without using the forms of communication that dominate modem existence. But to do so would require cutting oneself off from most of the world as well. That is a high price for privacy

Review of codes of conduct, voluntary guidelines and principles relevant for farm data sharing

Codes of conduct, voluntary guidelines, sets of principles on how to transparently govern farm data are a recent thing. While laws and regulations that govern personal data are becoming more and more common, legislation still does not cover data flows in many industries where different actors in the value chain need to share data and at the same time protect all involved from the risks of data sharing. Data in these value chains is currently governed through private data contracts or licensing agreements, which are normally very complex and on which data producers have very little negotiating power. Codes of conduct have started to emerge to fill the legislative void and to set common standards for data sharing contracts: codes provide principles that the signatories/subscribers/members agree to apply in their contracts

After Over-Privileged Permissions: Using Technology and Design to Create Legal Compliance

Consumers in the mobile ecosystem can putatively protect their privacy with the use of application permissions. However, this requires the mobile device owners to understand permissions and their privacy implications. Yet, few consumers appreciate the nature of permissions within the mobile ecosystem, often failing to appreciate the privacy permissions that are altered when updating an app. Even more concerning is the lack of understanding of the wide use of third-party libraries, most which are installed with automatic permissions, that is permissions that must be granted to allow the application to function appropriately. Unsurprisingly, many of these third-party permissions violate consumers’ privacy expectations and thereby, become “over-privileged” to the user. Consequently, an obscurity of privacy expectations between what is practiced by the private sector and what is deemed appropriate by the public sector is exhibited. Despite the growing attention given to privacy in the mobile ecosystem, legal literature has largely ignored the implications of mobile permissions. This article seeks to address this omission by analyzing the impacts of mobile permissions and the privacy harms experienced by consumers of mobile applications. The authors call for the review of industry self-regulation and the overreliance upon simple notice and consent. Instead, the authors set out a plan for greater attention to be paid to socio-technical solutions, focusing on better privacy protections and technology embedded within the automatic permission-based application ecosystem

A Third-Party Doctrine for Digital Metadata

For more than four decades, the third-party doctrine was understood as a bright-line, categorical rule: there is no legitimate privacy interest in any data that is voluntarily disclosed or conveyed to a third party. But this simple rule has dramatic effects in a world of ubiquitous networked computing, mobile technologies, and the commodification of information. The digital devices that facilitate our daily participation in modern society are connected through automated infrastructures that are designed to generate vast quantities of data, nearly all of which is captured, utilized, and stored by third-party service providers. Under a plain reading of the third-party doctrine, the substantial majority of that data receives no Fourth Amendment protection—no matter how sensitive or revealingIt is generally agreed that the balance struck in the third-party doctrine is no longer reasonable, as it fails to account for the far greater degree of privacy intrusion occasioned by warrantless government access to all of this personal data. Acknowledging that current approaches fail to adequately account for rapid advancements in information technology and analytics, the Supreme Court has responded in several recent cases by creating specific, narrow exceptions to the third-party doctrine for certain devices and data. But in the absence of a more generalized and coherent approach, lower courts have struggled to understand and apply these cases to other technologies and types of data, leading to uneven and often contradictory results.This Article provides a new analytical framework for adapting the third-party doctrine to the new information environment. Drawing on the Court’s recent decisions, the Article advances a three-step approach for the development of workable, bright-line rules governing the search and seizure of different categories of data. It identifies both guiding principles and competing interests, as well as the specific factors to be considered in assessing the legitimacy and relative strength of those interests. It then explains the relationship between these factors and their role in the balancing process that produces appropriate and workable rules. The goal is to provide a consistent, practical framework to be applied more generally across the different categories of data generated by digital technologies and services

Charter Rights, State Expertise: Testing State Claims to Expert Knowledge

This article considers the individual and collective significance of two decisions issued by the Supreme Court of Canada in 2018: Ewert v. Canada and R. v. Gubbins. At first glance, these decisions appear to have relatively little in common with one another. In Ewert, the Court considered the accuracy of diagnostic and risk assessment tools used by the Correctional Service of Canada (CSC) when making decisions about offenders. In Gubbins, the Court was concerned with pre-trial disclosure rules regarding approved breath alcohol analyzers. Ewert and Gubbins interpret different statutes and consider different Charter rights. The cases reach different conclusions about whether the State had met its responsibilities when dealing coercively with individuals in different corners of the criminal legal system

Charter Rights, State Expertise: Testing State Claims to Expert Knowledge

This article considers the individual and collective significance of two decisions issued by the Supreme Court of Canada in 2018: Ewert v. Canada and R. v. Gubbins

Principles for Resolving Conflicts between Trade Secrets and the First Amendment

Trade secret defendants sometimes raise First Amendment defenses to trade secret misappropriation claims. Some commentators believe that the First Amendment defenses should never be given credence in trade secret cases because trade secrets are property rights and there is no First Amendment right to violate property rights, a theory which the California Supreme Court arguably adopted in DVD Copy Control Association v. Bunner. Other commentators assert that preliminary injunctions in informational trade secret cases should be considered prior restraints on speech, which bear a heavy presumption of unconstitutionality. This Article asserts that preliminary injunctions in ordinary trade secret cases generally do not raise First Amendment concerns. The prior restraints doctrine ought, however, to be applied in cases in which third parties obtain non-public information without participating in any wrongdoing and decide to disclose it to the public to enhance public discourse. Insofar as the California Supreme Court decision in Bunner seemed to hold otherwise, its reasoning is flawed. The Article also discusses rare cases in which even direct misappropriators of trade secrets might succeed with First Amendment defenses in trade secret cases. It also considers a number of other First Amendment due process issues, such as whether the burden of proof in third party disclosure cases should be higher than in normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. The Article offers a set of consistent principles that should be applied in trade secret cases involving informational trade secrets