The commodification of information and the control of expression

The author suggests that the tendency of legal systems to treat information as property is creating threats to expression, particularly in the areas of copyright and privacy. Article by Professor Fred H. Cate (Professor of law and Ira C. Batman Faculty Fellow at the Indiana University School of Law – Bloomington) based on his lecture given at the IALS on 15 May 2002. Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

The Impact of Opt-In Privacy Rules on Retail Credit Markets: A Case Study of MBNA

U. S. privacy laws are increasingly moving from a presumption that consumers must object to ( opt out of) uses of personal data they wish to prohibit to a requirement that they must explicitly consent ( opt in ) to uses they wish to permit. Despite the growing reliance on opt-in rules, there has been little empirical research on their costs. This Article examines the impact of opt-in on MBNA Corporation, a diversified, multinational financial institution. The authors demonstrate that opt-in would raise account acquisition costs and lower profits, reduce the supply of credit and raise credit card prices, generate more offers to uninterested or unqualified consumers, raise the number of missed opportunities for qualified consumers, and impair efforts to prevent fraud. These costs would be incurred despite the fact that as of the end of 2000, only about two percent of MBNA\u27s customers had taken advantage of existing voluntary opportunities to opt out of receiving MBNA\u27s direct mail marketing offers. If Congress were to adopt opt-in laws applicable to financial information, the impact across the economy on consumers and businesses would be significant

Domestic Surveillance and the Decline of Legal Oversight

JURIST Guest Columnist Fred Cate of Indiana University School of Law Bloomington says that a series of dramatic moves over the past five years - most recently the passage of the Protect America Act - has weakened statutory and judicial oversight of domestic surveillance to the point that one wonders whether, by the time the Bush Administration and Congress are finished, there is going to be any legal oversight of domestic surveillance at all

Principles of Internet Privacy

The definition of privacy developed by Brandeis and Warren and Prosser, and effectively codified by Alan Westin in 1967 - the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others - worked well in a world in which most privacy concerns involved physical intrusions (usually by the government) or public disclosures (usually by the media), which, by their very nature, were comparatively rare and usually discovered. But that definition\u27s exclusive focus on individual control has grown incomplete in a world in which most privacy concerns involve data which we inevitably generate in torrents as go through our lives in an increasingly computerized, networked environment, and which can be collected and used by virtually anyone, usually without us knowing anything about it. Few of us have the awareness and expertise to consider trying to control all of the data we generate, few of us have the time or, frankly, even the incentive to attempt to do so, and the sheer volume of data, variety of sites where they are collected and used, and economic incentive for doing so would make the attempt laughably futile. This is not to suggest that individual control should not be part of our understanding of privacy, but rather that it can no longer reasonably be considered the only part. This article identifies principles that should undergird the government\u27s efforts to protect privacy and craft privacy norms, and then contrast the application of those principles in particular settings identified by Professor Paul Schwartz in his article Internet Privacy and the State