A Poor Mother\u27s Right to Privacy: A Review

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance. Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us

A New Compact for Sexual Privacy

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden. Privacy law is failing us. Our consumer protection approach offers little protection. Not only is the private-sector’s handling of intimate information largely unrestrained, but it is treated as normative. This Article offers a new compact for the protection of intimate information. Fundamental civil rights and liberties, along with consumer protection, is at stake. The new compact seeks to stem the tidal wave of collection, restrict certain uses of intimate data, and expand the suite of remedies available to courts. It draws upon the lessons of civil rights law in moving beyond procedural protections and in authorizing injunctive relief, including orders to stop processing intimate data

Mainstreaming Privacy Torts

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might recover for trivialities. Unfortunately, privacy tort law is ill-equipped to address these changes. Prosser built the modern privacy torts based on precedent and a desire to redress harm. Although Prosser’s privacy taxonomy succeeded in the courts because it blended theory and practice, it conceptually narrowed the interest that privacy tort law sought to protect. Whereas Warren and Brandeis conceived privacy tort law as protecting a person’s right to develop his “inviolate personality” free from unwanted publicity and access by others, Prosser saw it as addressing specific emotional, reputational, and proprietary injuries caused by four kinds of activities prevalent in the twentieth century. Courts have too often rigidly interpreted the four privacy torts, further confining their reach. As a result, Prosser’s privacy taxonomy often cannot address the privacy interests implicated by networked technologies. The solution lies in taking the best of what Prosser had to offer – his method of borrowing from doctrine and focusing on injury prevention and remedy – while ensuring that proposed solutions are transitional and dynamic. Any updates to privacy tort law should protect the broader set of interests identified by Warren and Brandeis, notably a person’s right to be free from unwanted disclosures of personal information so that he can develop his personality. While leaking databases and certain online postings compromise that interest, we should invoke mainstream tort remedies to address them, rather than conceiving unattainable new privacy torts. In addition to supplementing privacy tort law with traditional tort claims, courts should consider the ways that the internet magnifies privacy harms to ensure law’s recognition of them

Extremist Speech, Compelled Conformity, and Censorship Creep

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere. These changes are less the result of voluntary market choices than a bowing to governmental pressure. Private speech rules and policies about extremist content have been altered to stave off threatened European regulation. Far more than illegal hate speech or violent terrorist imagery is in EU lawmakers’ sights, so too is online radicalization and “fake news.” Newsworthy content may end up being removed along with terrorist beheading videos, “kill lists” of U.S. servicemen, and instructions on how to blow up houses of worship. The impact of extralegal coercion will be far reaching. Unlike national laws that are limited by geographic borders, terms-of-service agreements apply to platforms’ services on a global scale. Whereas local courts can only order platforms to block material viewed in their jurisdictions, a blacklist database raises the risk of total censorship. Companies should counter the serious potential for censorship creep with definitional clarity, robust accountability, detailed transparency, and ombudsman oversight

Cyber Civil Rights

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital scarlet letters that ruin reputations. Today\u27s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond. General criminal statutes and tort law proscribe much of the mobs\u27 destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim\u27s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality

Minimum Contacts in a Borderless World: Voice Over Internet Protocol and the Coming Implosion of Personal Jurisdiction Theory

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident\u27s minimum contacts with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state\u27s exercise of sovereignty over her. At the same time, the nonresident\u27s purposeful availment of opportunities within the state is seen as implying her agreement to that state\u27s jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number\u27s area code. Voice over Internet Protocol ( VoIP ) and the borderless communications of the twenty-first century belie this assumption. Area codes will no longer reliably correspond to known locations; individuals can call, and do mischief in, a state without ever realizing that they are contacting that state. With VoIP and its emerging applications, most means of interstate communications - voice, fax, file-sharing, e-mail, and real-time video conferencing - will lack geographic markers. The U.S. Supreme Court will be forced to choose which value is paramount: state sovereignty or the implied contract approach to due process. In a few cases arising from cellular-phone calls, lower courts have privileged the implied contract theory. This effectively returns the law of personal jurisdiction to the nineteenth-century formalism of Pennoyer v. Neff by limiting jurisdiction to defendants\u27 home states in cases arising from harmful communications. This evisceration of state sovereignty is unwarranted. Other means can protect a non-resident defendant from abusive process. Securing state sovereignty over harmful borderless communications promotes a healthy federalism, reconciling seemingly inconsistent centrifugal and centripetal themes in the Supreme Court\u27s jurisprudence

Collider Interplay for Supersymmetry, Higgs and Dark Matter

We discuss the potential impacts on the CMSSM of future LHC runs and possible electron-positron and higher-energy proton-proton colliders, considering searches for supersymmetry via MET events, precision electroweak physics, Higgs measurements and dark matter searches. We validate and present estimates of the physics reach for exclusion or discovery of supersymmetry via MET searches at the LHC, which should cover the low-mass regions of the CMSSM parameter space favoured in a recent global analysis. As we illustrate with a low-mass benchmark point, a discovery would make possible accurate LHC measurements of sparticle masses using the MT2 variable, which could be combined with cross-section and other measurements to constrain the gluino, squark and stop masses and hence the soft supersymmetry-breaking parameters m_0, m_{1/2} and A_0 of the CMSSM. Slepton measurements at CLIC would enable m_0 and m_{1/2} to be determined with high precision. If supersymmetry is indeed discovered in the low-mass region, precision electroweak and Higgs measurements with a future circular electron-positron collider (FCC-ee, also known as TLEP) combined with LHC measurements would provide tests of the CMSSM at the loop level. If supersymmetry is not discovered at the LHC, is likely to lie somewhere along a focus-point, stop coannihilation strip or direct-channel A/H resonance funnel. We discuss the prospects for discovering supersymmetry along these strips at a future circular proton-proton collider such as FCC-hh. Illustrative benchmark points on these strips indicate that also in this case FCC-ee could provide tests of the CMSSM at the loop level.Comment: 47 pages, 26 figure

When Law Frees Us to Speak

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyber harassment law’s salutary effects on women’s online expression. We consider the implication of those findings for victims of sexual privacy invasions

Visionary Pragmatism and the Value of Privacy in the Twenty-First Century

Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment. In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value of privacy protections. His pragmatic approach, which includes a taxonomy of privacy problems, succeeds because it is as dynamic as it is functional. It is poised to respond to existing privacy issues, yet nimble enough to tackle emerging problems. Without further guidance to policymakers about how to apply his framework, however, Solove’s proposal is susceptible to precisely the kind of non-pragmatic decision-making he eschews. It offers no safeguards, for example, to prevent decision makers from rendering judgments based on their overarching philosophies, preferences, or emotions, and it provides little advice to policymakers weighing competing privacy risks. In these respects, Solove’s approach would benefit from a more transparent decision-making process as well as rules of thumb intended to guide policymakers through some of privacy’s more complicated terrain. Solove provides an excellent aerial map of privacy, but to fulfill pragmatism’s promise, he needs to get closer to the ground

Government Speech 2.0

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices. This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices