| Surveillance and the Tyrant Test by Andrew Guthrie Ferguson, discussion by Rebecca Lipman | How should society respond to police surveillance technologies? This question has divided activists, law enforcement, and academics and will be a central question for years to come as police surveillance technology grows in scale and scope. This Article explores the taxonomy of past approaches to policing technologies, and – finding them all lacking – offers the “tyrant test” as an alternative. |
| Reckoning with Roots: Constitutional Privacy and White Supremacy by Sophia Lee, discussion by Mariana Oliver | This paper resituates the origins of privacy as a subject of constitutional protection away from the Supreme Court’s 1886 decision Boyd v. United States; protecting constitutional privacy, it turns out, was part of the process through which White elites North and South, Democrat and Republican come together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. |
| Healthcare Sanctuaries by Medha Makhlouf, discussion by Craig Konnoth | Reluctance to seek health care or coverage because of fear of immigration consequences is a barrier to healthcare access for noncitizens. This Article focuses on concerns that arise from two modes of immigration surveillance in health care: (1) interrogation, arrest, search, or detention by immigration enforcement officers at healthcare sites; and (2) use of personal information disclosed for the purpose of obtaining health care to deny immigration benefits or for immigration enforcement purposes. |
| Data Protection in Africa: An Appraisal of the Data Protection and Privacy Act of Uganda by Joel Basoga and Paul Epodoi, discussion by Przemyslaw Palka | Data driven technologies are integrating Africa like never before and placing the Continent on a path to increasing data flows. In the face of other pressing challenges, are African countries, particularly Uganda doing enough to protect the privacy and personal data of their citizens? |
| Empowering Digital Decisions: Designing Mobile Location-Based Services for Informed Location Data Disclosure by Alexis Shore and James Cummings, discussion by Lorrie Cranor | Mobile location-based services (LBS) often lack a consent framework that encourages users to make a decision that prioritizes their data privacy. The current experiment manipulates various interface features (friction, social proof, defaults), in addition to WTA/WTP framing, to unpack what influences users’ likelihood to obscure their location data. Results garnered from this study not only provide interdisciplinary theoretical insight but also practical recommendations for technology designers. |
| “In the Wild’ Trials of Live Facial Recognition Technology by Police: Why Responsible Trial Protocol is Urgently Needed and What They Should They Require? by Wenlong Li and Karen Yeung, discussion by Anne Washington | The aim of this paper is to critically examine ‘in-the-wild’ testing of live FRT by law enforcement authorities, and we argue that this technology may well turn out to be the Thalidomide of AI – enthusiastically embraced across the globe without rigorous trials to demonstrate its safety or efficacy, even as it degrades the core assumptions upon which liberal democratic societies rest. |
| Rethinking Platform Power by Mark Burdon and Tegan Cohen, discussion by Evelyn Douek | Regulator concerns about platform power are constructed along existing legal trajectories. We rethink how platform power emerges and is acted upon based on Deleuze’s Postscript on the Societies of Control (1992). Platform power involves the harnessing of data mutations which gives new insight into modulation harms and regulatory responses. |
| Gender as Emotive AI and the Case of Nadia: Regulatory and Ethical Implications by Rachel Adams, Nora Ni Loidean, and Damian Clifford, discussion by Brenda Leong | This paper unpacks the regulatory and ethical problematics of the artificial intelligence (AI) powered virtual assistant, ‘Nadia’, developed for use in the Australian Government’s National Disabilities Insurance Agency (NDIA). We explore how Nadia is gendered female, utilises high-risk AI technologies, including emotive AI and machine learning, and was developed for use by a group deemed vulnerable to further human rights violations by the law. |
| Privacy, Practice, and Performance by Ari Waldman, discussion by Salome Viljoen | This paper suggests that long-standing practices of privacy law–compliance mechanisms, regulators as industry partners, and individual self-governance–have socially constructed what privacy law is and should be, crowding out other options and weakening privacy law from within. It proposes a way out of the path dependent rut we are in, using a law and political economy approach. |
| 10:30 AM – 11:00 AM BREAK |
| 11:00 AM – 12:00 PM 2nd Session |
| The Aftermath of Carpenter: An Empirical Study of Federal and State Fourth Amendment Decisions, 2018-2021 by Matthew Tokson, discussion by Bennett Capers | The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. This Article analyzes all 857 federal and state judgments citing Carpenter from its publication in June of 2018 through March 2021. Using this unique, hand-coded database, the Article illuminates both the present and potential future of Fourth Amendment law. |
| Bedazzle, Inscribe, Flaunt: Electronic Ankle Monitors and Intentional Information Disclosures as Resistance Practices by Lauren Kilgour, discussion by Jasmine McNealy | In this article, I describe and analyze the cultures of resistance that circulate in response to electronic ankle monitor design and use in the United States (US) criminal justice system. Specifically, I focus on the spectrum of aesthetic resistance practices carried out by wearers on social media, which seek to resist and critique the sociocultural meaning attached to ankle monitors versus resisting the mechanical function of the monitors. |
| A Constitutional Case for Peace in the “War on Cash” by Raul Carrillo, discussion by Kate Weisburd | This Article argues that the “War on Cash” assails our most democratic constitutional principles with respect to monetary provisioning and privacy therein. It joins the chorus of scholars arguing we deserve “privacy in public” — we deserve to participate in the broader economy and society without perpetual surveillance, to be “one in the crowd.” In terms of payments systems design, a democratic vision of privacy can be instantiated in the technology of digital cash. |
| Privacy Governance in Contact Tracing Apps: A Comparative International Study by Alex Rosenberger, Madelyn Sanfilippo, and Yan Shvartzshnaider, discussion by Madiha Zarah Choksi | This paper empirically explores global and contextual privacy issues around 102 contact tracing apps in use in 72 around the world. We compare regulatory obligations, expectations, and practices, to examine how national norms and contexts impact privacy governance and practices. |
| The GDPR and the Free Flow of Personal Data: The Tale of Persistent Borders by Michalina Nadolna Peeters, discussion by Michael Birnhack | The EU General Data Protection Regulation (GDPR) aims to attain a consistent protection of personal data and free flow of personal data in the EU. This paper explores how theoretical tensions and broad leeway given to Member States in the GDPR result in the ‘persistence’ of borders understood as a legal event triggering the application of conflict-of-law rules. |
| Coca Cola Curses: Dangerous Hate Speech in a Postcolonial Context by Brittan Heller, discussion by Kirsty Hughes | Hate speech, especially dangerous speech that incites violence, follows predictable patterns. This paper is the first to suggest that online hate speech may operate differently in a postcolonial context, based off fieldwork conducted by the author in Uganda, and proposes a new hallmark for dangerous speech — “calls for geographic exclusion.” |
| Making Data Private – and Excludable: A New Approach to Understanding the Role of Encryption in the Digital Political Economy by Brenden Kuerbis and Milton Mueller, discussion by Sebastian Benthall | This paper identifies a phenomenon called “data enclosure,” which is part of the competitive struggle over the economic value of data. The most interesting questions about the future of privacy arise from the degree to which data enclosures affect competition and succeed in providing better privacy protection. |
| The Surprising Virtues of Data Loyalty by Woodrow Hartzog and Neil Richards, discussion by Lauren Scholz | Duties of data loyalty implementing ideas from privacy law scholarship are now under serious consideration by lawmakers in the US and Europe, but critics charge that such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. |
| The Constitutionality of Data Privacy as Transparency Law by Margot Kaminski, discussion by Gautam Hans | Privacy laws are also transparency laws. That is, most privacy laws either require or incentivize disclosure of the fact of surveillance, and many require disclosure of extensive details of surveillance practices. Yet while most privacy law experts take the centrality of these privacy transparencies for granted, understanding privacy laws as transparency laws changes the terms of the debate on the constitutionality of data privacy regulation under the First Amendment. |
| 12:00 PM – 1:30 PM Lunchtime Break |
| 1:00 PM – 1:30 PM Listening Session about current and future changes/goals of PLSC. Hosted by Ari Waldman |
| 1:30 PM – 2:30 PM 3rd Session |
| A Partial Property Rights Theory of the Fourth Amendment: Getting to Privacy More Reasonably by Mailyn Fidler, discussion by Peter Ormerod | Existing Fourth Amendment approaches are lacking. I argue that Fourth Amendment protections should be triggered when one has a “partial” property right: the right to exclude at least some person in at least some circumstance. This approach avoids the narrowness of a traditional property approach to the Fourth Amendment and provides a more conceptually grounded path to protecting privacy than the leading reasonable expectation approach. |
| Conceptualizing Privacy as a Civil Right by Tiffany Li, discussion by Thomas Kadri | |
| America’s Hidden National DNA Database by Natalie Ram, discussion by Barry Friedman | This Article comprehensively maps whether, and under what circumstances, law enforcement is likely able to access residual newborn screening samples or their related data. Having surveyed these divergent policies, the Article argues that state legislatures should enact, or the federal government should require, a policy rejecting law enforcement use of these vital resources to develop investigative leads. Such a policy is most consonant with respect for persons, best able to maintain public trust in the important public health purposes of newborn screening programs, and most certain to survive constitutional scrutiny. |
| How the GDPR Champions Freedom of Expression and Information by Jef Ausloos, discussion by Margot Kaminski | This paper defends the counter-intuitive claim that the GDPR champions the right to freedom of expression and information in the face of platform power. |
| Making Artificial Intelligence Transparent: Privacy Fairness, and the Problem of Proxy Variables by Richard Warner and Robert Sloan, discussion by Emily McReynolds | AI-driven decisions reduce informational by drawing data from any area of your life to make decisions about any other area. We propose four fairness requirements to regulate the immensely computational and mathematical systems. The requirements incorporate the computer science notion of an explainable system. |
| Solving the Hiring Paradox: A Method to Address Bias in the Hiring Process Within the Law by Jad Salem, Swati Gupta, and Deven Desai, discussion by Pauline Kim | With widespread use of automated methods in applicant screening, there is growing concern over fairness and growing need for legal analysis of relevant algorithmic techniques. In this paper, we provide a legal justification for a recently proposed algorithmic technique for bias mitigation in applicant screening. |
| Virtual Classrooms and Real Harms by Shaanan Cohney, Ross Teixeira, Anna Kohlbrenner, Arvind Narayanan, Mihir Kshirsagar, Madelyn Sanfilippo, and Yan Shvartzshnaider, discussion by Angie Raymond | In the rapid shift to online learning, universities have acquired new risks of security vulnerabilities and privacy violations. We survey 49 U.S. educators and 10 U.S. administrators about their privacy and security concerns, analyze the privacy policies and security practices of 23 remote learning platforms, and examine 129 state laws that enhance student privacy. We provide recommendations for educators and policymakers. |
| Regulating Digital Contact Tracing for Communicable Diseases by Sarah Eskens and Natali Helberger, discussion by Jules Polonetsky | Contact tracing apps challenge fundamental rights and the way these apps were introduced raises questions about the democratic legitimacy of these apps. This paper analyses two questions: should contact tracing apps have a regulatory framework (yes) and what should be contained within such a regulatory framework (voluntariness, prevention of abuse, transparency, duration, interoperability, and the relationship with big tech)? |
| Surveying Surveillance: A National Study of Police Department Surveillance Technologies by Mariana Oliver and Matthew Kugler, discussion by Victoria Schwartz | Evidence from an original, national survey of police departments shows how surveillance technologies are distributed across jurisdiction types. Cell phone location tracking is very common across small and large jurisdictions, while use of facial recognition is still lagging. We discuss implications for privacy and civil liberties. |
| How (Not) to Write a Privacy Law by Julie Cohen, discussion by Cam Kerry | Many of the shared features of proposed privacy legislation embody fundamentally backward-looking approaches that cannot hope to constrain the activities they attempt to address. In particular, such approached are heavily influenced by antiquated private law ideals privileging bottom-up governance via assertion of individual rights and retrospective, litigation-centered enforcement. Effective privacy governance requires a model organized around problems of design, networked flow, and scale; I identify some essential components of such a model. |
| 2:30 PM – 3:00 PM BREAK |
| 3:00 PM – 4:00 PM 4th Session |
| Katz as Originalism by Orin Kerr, discussion by I. India Thusi | Originalists and textualists often argue that the Katz “reasonable expectation of privacy” should be overturned because it has no grounding in constitutional text or history. But they’re wrong. Katz is fully consistent with the Fourth Amendment’s text, and it provides a plausible construction of its original public meaning. |
| Race-Aware Algorithms: Fairness, Nondiscrimination and Affirmative Action by Pauline Kim, discussion by Deborah Hellman | Mitigating or removing discriminatory bias from algorithms requires designers to be aware of characteristics like race and sex when building models. Contrary to the assumptions of some scholars, this Article argues that the law permits some forms of race-consciousness and therefore, whether a race-aware algorithm constitutes disparate treatment depends upon when and how race is taken into account in the model-building process. |
| The Cures Act API Rule: Implications for Health Information in terms of Access, Privacy, and Competitive Practices by Amanda Stanhaus and Denise Anthony, discussion by Charlotte Tschider | Analysis of Regulatory Rulemaking comments regarding The Cures Act API Rule indicates how self-interest in data access motivates the comment submissions. Most striking is the divergence amongst stakeholders in the portrayal of patients’ ability to self-manage their health information across disjointed privacy regimes. We find that stakeholders conflate patient data access with third-party data access, and we conclude by pointing toward some potential consequences for both individual privacy and anti-competitive organizational practices. |
| Narrowing Data Protection’s Enforcement Gap by Filippo Lancieri, discussion by Justin Hemmings | Data protection laws recurrently suffer from an enforcement gap. This article describes the three core building blocks of data protection regimes in the United States and Europe: market forces, tort liability and regulatory enforcement. It then identifies two key reasons—particularly deep information asymmetries between companies and consumers/regulators, and high levels of market power in many data markets—that enable companies to undermine legal compliance. |
| The Technologization of Insurance: An Empirical Analysis of Big Data and Artificial Intelligence’s Impact on Privacy and Cybersecurity by Shauhin Talesh and Bryan Cunningham, discussion by Katie Shilton | Drawing from sixty interviews of the cyber insurance field, a quantitative analysis of a “big data” set we obtained from a data provider, and observations at cyber insurance conferences, we explore the effects of what we refer to as the “technologization of insurance,” the process whereby technology influences and shapes the delivery of insurance. |
| The Legal Construction of Black Boxes: How Machine Learning Practice Informs Foreseeability by Andrew Selbst, Suresh Venkatasubramanian, and I. Elizabeth Kumar, discussion by Frank Pasquale | We challenge the idea AI is unknowable and therefore that AI harms are unforeseeable, arguing that when computer scientists draw abstraction boundaries, they are making claims as to a division of responsibilities between designers and users. |
| Identity by Committee by Scott Skinner-Thompson, discussion by Kendra Albert | Vast bureaucracies now regulate students’ gender identities in public schools, limiting freedom and endangering privacy. These substantive & procedural obstacles to gender freedom are linked to medical and social models of understanding gender. This paper critiques these trends, while arguing that a focus on the expressive dimensions of gender may hold greater emancipatory potential. |
| Anticompetitive-by-Design: Preventing Dark Patterns in Data Sharing by Gabriel Nicholas, discussion by Mihir Kshirsagar | What technical design tactics do platforms use to make sure users can’t bring their data with them to competitors? This paper looks at three different “data sharing dark patterns” through mini case studies in three different sectors — agriculture, social media, and energy. |
| Democratic Algorithms by Hannah Bloch-Wehba, discussion by Neil Richards | This paper examines how, together, social movements and tech workers are demanding democratic accountability for algorithmic governance. Drawing on theories of democratic participation in and outside of the workplace, the paper argues that these movements are advancing a new theory of accountability for algorithms that deserves to be taken seriously by policymakers and scholars. |
| Public Undersight by Christina Koningisor, discussion by Kathy Strandburg | This Article explores the growing array of bottom-up movements that have sprung up around the country in recent years to circumvent the formal transparency law regime and challenge the government’s monopoly on information from the outside. Activists now rely on public sources of information and extralegal monitoring to track where ICE conducts immigration raids, observe police activity in communities of color, monitor air pollution near industrial sites, and collect data on bail decisions. The Article explores the benefits and drawbacks of these efforts—arguing that these movements can help to remedy flaws in the formal transparency law regime and democratize public access to government, but that they may also introduce potential privacy harms and other risks. |
| 4:00 PM – 6:00 PM Post-Proceedings |