Fulfilling Government 2.0\u27s Promise with Robust Privacy Protections

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers. To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and sharing individuals’ social media data for more than policymaking, including law enforcement, immigration, tax, and benefits matters. Although people may be prepared to share their views on health care and the environment with agencies and executive departments, they may be dismayed to learn that such policy collaborations carry a risk of government surveillance. This Essay argues that government should refrain from accessing individuals’ social media data on Government 2.0 sites. Agencies should treat these sites as one-way mirrors, where individuals can see government’s activities and engage in policy discussions but where government cannot use, collect, or distribute individuals’ social media information. A “one-way mirror” policy would facilitate democratic discourse, enhance government accountability, and protect privacy

Privacy Injunctions

Violations of intimate privacy can be never ending. As long as nonconsensual pornography and deepfake sex videos remain online, privacy violations continue, as does the harm. This piece highlights the significance of injunctive relief to protect intimate privacy and legal reforms that can get us there. Injunctive relief is crucial for what it will say and do for victims and the groups to which they belong. It would have content platforms treat victims with the respect that they deserve, rather than as purveyors of their humiliation. It would say to victims that their intimate privacy matters and that sites specializing in intimate privacy violations are not lawless zones where their rights can be violated. For victims, the journey to reclaim their sexual and bodily autonomy, self-esteem and social esteem, and sense of physical safety proceeds slowly; the halting of the privacy violation lets that process begin. The crux of my proposal is straightforward: Lawmakers should empower courts to issue injunctive relief, directing content platforms that enable intimate privacy violations to remove, delete, or otherwise make unavailable intimate images, real or fake, that were hosted without written permission. They should amend Section 230 of the Communications Decency Act so that these enabling platforms can be sued for injunctive remedies. Market developments can fill some of the gaps as we wait for laws to protect intimate privacy as vigorously and completely as they should

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 could be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. Women and minorities shoulder a disproportionate amount of that burden. Privacy law is failing us. Not only is the private sector’s handling of intimate information largely unrestrained by American consumer protection law, but it is treated as inevitable and valuable. This Article offers a new compact for sexual privacy. Reform efforts should focus on stemming the tidal wave of collection, restricting uses of intimate data, and expanding the remedies available in court to include orders to stop processing intimate data

Technological Due Process

Distinct and complementary procedures for adjudication and rulemaking lie at the heart of twentieth-century administrative law. Due process requires agencies to provide individuals notice and an opportunity to be heard. Through public rulemaking, agencies can foreclose policy issues that individuals might otherwise raise in adjudication. One system allows for focused advocacy; the other features broad participation. Each procedural regime compensates for the normative limits of the other. Both depend on clear statements of reason. The dichotomy between these procedural regimes is rapidly becoming outmoded. This century’s automated decision making systems combine individual adjudications with rulemaking while adhering to the procedural safeguards of neither. Automated systems jeopardize due process norms. Hearings are devalued by the lack of meaningful notice and by the hearing officer’s tendency to presume a computer system’s infallibility. The Mathews v. Eldridge cost-benefit analysis is ill-equipped to compare the high fixed cost of deciphering a computer system’s logic with the accumulating variable benefit of correcting myriad inaccurate decisions made based on this logic. Automation also defeats participatory rulemaking. Code, not rules, determines the outcomes of adjudications. Programmers inevitably alter established rules when embedding them into code in ways the public, elected officials, and the courts cannot review. Last century’s procedures cannot repair these accountability deficits. A new concept of technological due process is essential to vindicate the norms underlying last century’s procedural protections. This Article will demonstrate how a carefully structured inquisitorial model of quality control can partially replace aspects of adversarial justice that automation renders ineffectual. It also provides a framework of mechanisms capable of enhancing the transparency, accountability, and accuracy of rules embedded in automated decision-making systems

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, the dominant 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 of a bowing to governmental pressure. Companies’ 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 and political criticism may end up being removed along with terrorist beheading videos, “kill lists” of U.S. servicemen, and instructions on how to bomb 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 order platforms only to block material viewed in their jurisdictions, a blacklist database raises the risk of global censorship. Companies should counter the serious potential for censorship creep with definitional clarity, robust accountability, detailed transparency, and ombudsman oversight

Addressing Cyber Harassment: An Overview of Hate Crimes in Cyberspace

This short piece will take a step back and give an overhead view of the problem of cyber harassment and the destructive impact it can have on victims’ lives. Then, it will address about what the law can do to combat online harassment and how a legal agenda can be reconciled with the First Amendment. Finally, it will turn to recent changes in social media companies’ treatment of online abuse and what that might mean for our system of free expression. Symposium Article

Why Sexual Privacy Matters for Trust

Every generation has preferred modes of self-disclosure. Not long ago, lovers revealed their thoughts, desires, and secrets over the phone and in letters. Today, they exchange personal histories and nude photos via text and online chats. Yet no matter the era’s chosen mode of communication, the success of intimate relationships depends upon sexual privacy. Intimacy can develop only if partners trust each other to treat their self-revelations with discretion and care. Self-disclosure, however, is difficult after one’s nude photos have been posted online or one’s intimate encounters have been videotaped without permission. Individuals refrain from dating for fear that their intimate revelations will again be surveilled and exposed in unwanted ways. Sexual-privacy invasions thus undermine the possibility of intimate relationships. Law should punish intimacy-destroying invasions of sexual privacy, and market efforts should be trained on their prevention and mitigation. Some private responses, however, require a healthy dose of skepticism as they over-promise and under-deliver for sexual privacy

The Roots of Sexual Privacy: Warren and Brandeis & the Privacy of Intimate Life

It is lovely to be here, especially because, as a privacy scholar, I am a bit of an interloper with the IP crowd. Whenever anyone mentions IP, I think they mean “information privacy.” So, in this group of intellectual property scholars, I am surely an outlier as well. It is exciting to find a kindred spirit in Jennifer Rothman’s book, which conceptualizes privacy as centrally involved with the formation of identity. What I am going to do is circle back to tell the story of Samuel Warren and Louis Brandeis, what they were doing in their famous law review article, how they broke new ground, and some of the history around the project and the writers themselves. Then, I am going to talk about sexual privacy, the focus on my current work

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 cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the 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 cyberharassment law’s salutary effects on women’s online expression. We then consider the implications of those findings for victims of sexual-privacy invasions