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Abstract: In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide argument and exposes its faulty underpinnings.
privacy, nothing to hide, data mining, surveillance
Abstract: Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests. In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms. A new taxonomy to understand privacy violations is thus sorely needed. This article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.
privacy, taxonomy, Fourth Amendment, Prosser, Brandeis, philosophy
Abstract: Journalists, politicians, jurists, and legal academics often describe the privacy problem created by the collection and use of personal information through computer databases and the Internet with the metaphor of Big Brother - the totalitarian government portrayed in George Orwell's Nineteen Eighty-Four. Professor Solove argues that this is the wrong metaphor. The Big Brother metaphor as well as much of the law that protects privacy emerges from a longstanding paradigm for conceptualizing privacy problems. Under this paradigm, privacy is invaded by uncovering one's hidden world, by surveillance, and by the disclosure of concealed information. The harm caused by such invasions consists of inhibition, self-censorship, embarrassment, and damage to one's reputation. Privacy law has developed with this paradigm in mind, and consequently, it has failed to adapt to grapple effectively with the database problem. Professor Solove argues that the Big Brother metaphor merely reinforces this paradigm and that the problem is better captured by Franz Kafka's The Trial. Understood with the Kafka metaphor, the problem is the powerlessness, vulnerability, and dehumanization created by the assembly of dossiers of personal information where individuals lack any meaningful form of participation in the collection and use of their information. Professor Solove illustrates that conceptualizing the problem with the Kafka metaphor has profound implications for the law of information privacy as well as which legal approaches are taken to solve the problem.
Privacy, information, database, computer, cyberspace, Internet, metaphor, literature
Abstract: Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information increasingly available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible. In UNDERSTANDING PRIVACY (Harvard University Press, May 2008), Professor Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues, such as surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.
privacy, philosophy, Wittgenstein, theory, surveillance, data mining, identity theft, information, norms
Abstract: This book chapter provides a brief history of information privacy law in the United States from colonial times to the present. It discusses the development of the common law torts, Fourth Amendment law, the constitutional right to information privacy, numerous federal statutes pertaining to privacy, electronic surveillance laws, and more. It explores how the law has emerged and changed in response to new technologies that have increased the collection, dissemination, and use of personal information.
privacy, information, history, technology
Abstract: In this article, Professor Solove develops a theory to reconcile the tension between transparency and privacy in the context of public records. Federal and state governments maintain public records containing personal information spanning an individual's life from birth to death. The web of state and federal regulation that governs the accessibility of these records generally creates a default rule in open access to information. Solove contends that the ready availability of public records creates a significant problem for privacy because various bits of information when aggregated paint a detailed portrait of a person's life that Solove refers to as a digital biography. A growing number of private sector organizations assemble these digital biographies, which are used in a number of disturbing ways that are not in line with the purposes of freedom of information laws. To combat this problem, Solove argues, commercial access and use restrictions must be imposed on public record systems, and a federal baseline of protection must be established. Information privacy must be reconceptualized to abandon the secrecy paradigm, the longstanding notion that there is no claim to privacy when information appears in a public record. Privacy must be understood as an expectation of a limit on the degree of accessibility of information. Engaging in an extensive analysis of the applicability of the Constitution to public record systems, Solove contends that attempts to limit the use and accessibility of public records do not run afoul of the First Amendment rights to access government information and to freedom of speech and press. Therefore, viewed in light of Solove's theory of information privacy, the regulation of public record regimes must be substantially rethought.
Privacy, Public Records, Court Records, First Amendment, Freedom Of Information, Access, Internet, Cyberspace
Abstract: This version incorporates and responds to the many comments that we received to Version 1.1, which we released on March 10, 2005. Privacy protection in the United States has often been criticized, but critics have too infrequently suggested specific proposals for reform. Recently, there has been significant legislative interest at both the federal and state levels in addressing the privacy of personal information. This was sparked when ChoicePoint, one of the largest data brokers in the United States with records on almost every adult American citizen, sold data on about 145,000 people to fraudulent businesses set up by identity thieves. Other companies announced security breaches, including LexisNexis, from which personal information about 32,000 people was improperly accessed. Senator Schumer criticized Westlaw for making available to certain subscribers personal information including Social Security Numbers (SSNs). In the aftermath of the ChoicePoint debacle and other major information security breaches, both of us have been asked by Congressional legislative staffers, state legislative policymakers, journalists, academics, and others about what specifically should be done to better regulate information privacy. In response to these questions, we believe that it is imperative to have a discussion of concrete legislative solutions to privacy problems. What appears below is our attempt at such an endeavor. Privacy experts have long suggested that information collection be consistent with Fair Information Practices. This Model Regime incorporates many of those practices and applies them specifically to the context of commercial data brokers such as ChoicePoint. We hope that this will provide useful guidance to legislators and policymakers in crafting laws and regulations. We also intend this to be a work-in-progress in which we collaborate with others. We have welcomed input from other academics, policymakers, journalists, and experts as well as from the industries and businesses that will be subject to the regulations we propose. We have incorporated criticisms and constructive suggestions, and we will continue to update this Model Regime to include the comments we find most helpful and illuminating. Notice, Consent, Control, and Access 1. Universal Notice 2. Meaningful Informed Consent 3. One-Step Exercise of Rights 4. Individual Credit Management 5. Access to and Accuracy of Personal Information Security of Personal Information 6. Secure Identification 7. Disclosure of Security Breaches Business Access to and Use of Personal Information 8. Social Security Number Use Limitation 9. Access and Use Restrictions for Public Records 10. Curbing Excessive Uses of Background Checks 11. Private Investigators Government Access to and Use of Personal Data 12. Limiting Government Access to Business and Financial Records 13. Government Data Mining 14. Control of Government Maintenance of Personal Information Privacy Innovation and Enforcement 15. Preserving the Innovative Role of the States 16. Effective Enforcement of Privacy Rights Commentary
Privacy, legislation, regulation, ChoicePoint, information, security, data
Abstract: A series of major security breaches at companies with sensitive personal information has sparked significant attention to the problems with privacy protection in the United States. Currently, the privacy protections in the United States are riddled with gaps and weak spots. Although most industrialized nations have comprehensive data protection laws, the United States has maintained a sectoral approach where certain industries are covered and others are not. In particular, emerging companies known as "commercial data brokers" have frequently slipped through the cracks of U.S. privacy law. In this article, the authors propose a Model Privacy Regime to address the problems in the privacy protection in the United States, with a particular focus on commercial data brokers. Since the United States is unlikely to shift radically from its sectoral approach to a comprehensive data protection regime, the Model Regime aims to patch up the holes in existing privacy regulation and improve and extend it. In other words, the goal of the Model Regime is to build upon the existing foundation of U.S. privacy law, not to propose an alternative foundation. The authors believe that the sectoral approach in the United States can be improved by applying the Fair Information Practices - principles that require the entities that collect personal data to extend certain rights to data subjects. The Fair Information Practices are very general principles, and they are often spoken about in a rather abstract manner. In contrast, the Model Regime demonstrates specific ways that they can be incorporated into privacy regulation in the United States. This is the final version of this paper (Version 3.0), earlier versions of which are also available on SSRN. This version of the paper is published in the Illinois Law Review.
privacy, databases, databrokers, ChoicePoint, identity theft, credit, legislation, regulation, information, security, data
Abstract: The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.
privacy, confidentiality, Brandeis, Prosser, British law, English law, comparative law, torts
Abstract: Privacy protection in the United States has often been criticized, but critics have too infrequently suggested specific proposals for reform. Recently, there has been significant legislative interest at both the federal and state levels in addressing the privacy of personal information. This was sparked when ChoicePoint, one of the largest data brokers in the United States with records on almost every adult American citizen, sold data on about 145,000 people to fraudulent businesses set up by identity thieves. In the aftermath of the ChoicePoint debacle, both of us have been asked by Congressional legislative staffers, state legislative policymakers, journalists, academics, and others about what specifically should be done to better regulate information privacy. In response to these questions, we believe that it is imperative to have a discussion of concrete legislative solutions to privacy problems. What appears below is our attempt at such an endeavor. Privacy experts have long suggested that information collection be consistent with Fair Information Practices. This Model Regime incorporates many of those practices and applies them specifically to the context of commercial data brokers such as Choicepoint. We hope that this will provide useful guidance to legislators and policymakers in crafting laws and regulations. We also intend this to be a work-in-progress in which we collaborate with others. We welcome input from other academics, policymakers, journalists, and experts as well as from the industries and businesses that will be subject to the regulations we propose. We invite criticisms and constructive suggestions, and we will update this Model Regime to incorporate the comments we find most helpful and illuminating. We also aim to discuss some of the comments we receive in a commentary section. To the extent to which we incorporate suggestions and commentary, and if those making suggestions want to be identified, we will graciously acknowledge those assisting in our endeavor. Notice, Consent, Control, and Access 1. Universal Notice 2. Meaningful Informed Consent 3. One-Step Exercise of Rights 4. Individual Credit Management 5. Access to and Accuracy of Personal Information Security of Personal Information 6. Secure Identification 7. Disclosure of Security Breaches Business Access to and Use of Personal Information 8. Social Security Number Use Limitation 9. Access and Use Restrictions for Public Records 10. Curbing Excessive Uses of Background Checks 11. Private Investigators Government Access to and Use of Personal Data 12. Limiting Government Access to Business and Financial Records 13. Government Data Mining 14. Control of Government Maintenance of Personal Information Privacy Innovation and Enforcement 15. Preserving the Innovative Role of the States 16. Effective Enforcement of Privacy Rights
Abstract: THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; whether we are investigated or arrested; and whether we are permitted to fly on an airplane. Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. Do these developments pose a problem? Is it possible to protect privacy in a society where information flows so freely and proliferates so rapidly? THE DIGITAL PERSON seeks to answer these questions. This book explores the problem from all angles - how businesses gather personal information in massive databases; how the government increasingly provides this data to businesses through public records; and how the government is gathering personal data from businesses for its own uses. THE DIGITAL PERSON not only explores these problems, but also provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of privacy, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world. The table of contents and Chapter 1 are available for download.
privacy, information, digital, Fourth Amendment, databases, data mining, Orwell, Kafka
Abstract: This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual. In this Article, Professor Solove contends the traditional model does not adequately account for many of the privacy problems arising today. These privacy problems do not consist merely of a series of isolated and discrete invasions or harms, but are systemic in nature. They cannot adequately be remedied by individual rights and remedies alone. In contrast, Professor Solove proposes a different model for understanding and protecting against these privacy problems. Developing the notion of "architecture" as used by Joel Reidenberg and Lawrence Lessig, Solove contends that many privacy problems must be understood as the product of a broader structural system which shapes the collection, dissemination, and use of personal information. Lessig and Reidenberg focus on "architectures of control," structures that function to exercise greater dominion over individuals. Solove argues that in addition to architectures of control, we are seeing the development of "architectures of vulnerability," which create a world where people are vulnerable to significant harm and are helpless to do anything about it. Solove argues that protecting privacy must focus not merely on remedies and penalties but on shaping architectures. Professor Solove illustrates these points with the example of identity theft, one of the most rapidly growing types of criminal activity. Identity theft is often conceptualized under the traditional model as the product of disparate thieves and crafty criminals. The problem, however, has not been adequately conceptualized, and, as a result, enforcement efforts have been misdirected. The problem, as Solove contends, is one created by an architecture, one that creates a series of vulnerabilities. This architecture is not created by identity thieves; rather, it is exploited by them. It is an architecture of vulnerability, one where personal information is not protected with adequate security. The identity thief's ability to so easily access and use our personal data stems from an architecture that does not provide adequate security to our personal information and that does not afford us with a sufficient degree of participation in the collection, dissemination, and use of that information. Understanding identity theft in terms of architecture reveals that it is part of a larger problem that the law has thus far ignored. Solove then discusses solutions to the identity theft problem. He engages in an extensive critique of Lynn LoPucki's solution, which involves the creation of a public identification system. After pointing out the difficulties in LoPucki's proposal, Solove develops an architecture that can more appropriately curtail identity theft, an architecture based on the Fair Information Practices.
identity theft, databases, architecture, privacy, Internet, identification, LoPucki, social security numbers, Fair Credit Reporting Act, credit reporting, password
Abstract: After the September 11th attacks in 2001, Congress hastily passed the USA-Patriot Act which made several changes to electronic surveillance law. The Act has sparked a fierce debate. However, the pros and cons of the USA-Patriot Act are only one part of a much larger issue: How effective is the law that regulates electronic surveillance? The USA-Patriot Act made a number of changes in electronic surveillance law, but the most fundamental problems with the law did not begin with the USA-Patriot Act. In this article, Professor Solove argues that electronic surveillance law suffers from significant problems that predate the USA-Patriot Act. The USA-Patriot Act indeed worsened some of these problems, but surveillance law had lost its way long before. Surveillance law is thus in need of a radical reconstruction. After exploring specific difficulties with the scope, standards, and enforcement mechanisms of the statutes, Solove turns to examine the more deeply-rooted and systematic problems. Solove contends that electronic surveillance law is overly intricate and complex, that it has failed to keep pace in adapting to new technologies, and that it provides for insufficient judicial and legislative oversight. He proposes ways in which surveillance law should be reconstructed to address these problems. Solove recommends a rather radical solution: Warrants supported by probable cause should be required for most uses of electronic surveillance. Finally, Solove suggests that Congress draft a charter regulating the FBI.
surveillance, privacy, patriot act, government, search, technology, FBI
Abstract: YouTube. Facebook. MySpace. Wikipedia. Google. These are among the many new ways people are communicating and obtaining information. In THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Yale University Press, October 2007), Professor Daniel J. Solove warns that this new world demands new thinking about the nature of privacy. Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives - often of dubious reliability and sometimes totally false - will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with stories of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy. Solove explores how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cyber mobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Longstanding notions of privacy need review: unless we establish a balance among privacy, free speech, and anonymity, we may discover that the freedom of the Internet makes us less free. Chapter 1 is available for download.
blog, social network, gossip, rumor, free speech, First Amendment, privacy, Google, anonymity, defamation, reputation, libel, slander
Abstract: In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about the effectiveness of the security interest. In the context of data mining, the liberty interest is limited by narrow understandings of privacy that neglect to account for many privacy problems. As a result, the balancing concludes with a victory in favor of the security interest. But as I argue, important dimensions of data mining's security benefits require more scrutiny, and the privacy concerns are significantly greater than currently acknowledged. These problems have undermined the balancing process and skewed the results toward the security side of the scale.
privacy, security, liberty, data mining, NSA, surveillance, deference, balancing
Abstract: This essay is a short book chapter in a forthcoming book by Stanford University Press of papers for a conference on privacy and security at Stanford Law School held in March 2004. The essay argues that abuses of personal information are caused by the failure to regulate the way companies manage personal information. Despite taking elaborate technological measures to protect their data systems, companies readily disseminate the personal information they have collected to a host of other entities and sometimes even to anyone willing to pay a small fee. Companies provide access to their record systems over the phone to anybody in possession of a few easy-to-find pieces of personal information such as Social Security numbers, birth dates, and mothers' maiden names. Reforming this problematic state of affairs requires a rethinking of the way the law comprehends the abuse of personal information. The law fails to focus on the causes of information abuses; instead, it becomes involved when information misuses such as identity theft actually occur, not earlier on in the process. If the law addressed information leaks and insecurity, it would more effectively curtail abuses.
privacy, security, identity theft, Social Security numbers, data
Abstract: In recent years, information privacy has emerged as one of the central issues of our times. Today, we have hundreds of laws pertaining to privacy - the common law torts, criminal law, evidentiary privileges, constitutional law, at least twenty federal statutes, and numerous statutes in each of the fifty states. To understand the law of information privacy more completely, it is necessary to look to its origins and growth. This article provides a brief overview of the history of the development of information privacy law. In particular, it explores the way that the law has emerged in response to changes in technology that have increased the collection, dissemination, and use of personal information.
privacy, history, information, technology, Brandeis
Abstract: In this Article, Professor Solove develops a new approach for conceptualizing privacy. He begins by examining the existing discourse about conceptualizing privacy, exploring the conceptions of a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. Solove contends that the theories are too narrow or too broad. With a few exceptions, the discourse seeks to conceptualize privacy by isolating one or more common essential or core characteristics of privacy. Expounding upon Ludwig Wittgenstein's notion of family resemblance, Solove contends that privacy is better understood as drawing from a common pool of similar characteristics. Rather than search for an overarching concept, Solove advances a pragmatic approach to conceptualizing privacy. In Part I, Solove discusses and critiques the conceptions of a wide array of theorists under six general headings, which capture the recurrent ideas in the discourse. These headings include: (1) the right to be let alone - Samuel Warren and Louis Brandeis's famous formulation for the right to privacy; (2) limited access to the self - the ability to shield oneself from unwanted access by others; (3) secrecy - the concealment of certain matters from others; (4) control over personal information - the ability to exercise control over information about oneself; (5) personhood - the protection of one's personality, individuality, and dignity; and (6) intimacy - control over, or limited access to, one's intimate relationships or aspects of life. In Part II, Solove contends that attempts to conceptualize privacy by locating the common denominator to identify all instances of privacy have thus far been unsatisfying. Wittgenstein's notion of family resemblance suggests that there are other ways to conceptualize beyond a search for the common denominator. Solove develops a pragmatic approach to conceptualizing privacy, seeking to understand privacy in terms of practices. Privacy is not reducible to a set of neutral conditions that apply to all matters we deem private. Rather, to say that a particular matter is private or to talk about privacy in the abstract is to make a generalization about particular practices. These practices are a product of history and culture. Therefore, we should explore what it means for something to be private contextually by looking at particular practices. Solove illustrates these points by looking historically at certain matters Western societies have long understood as private - the family, the body, and the home. Next, Solove contends that privacy does not have a universal value that is the same across all contexts. The value of privacy in a particular context depends upon the social importance of the practice of which it is a part. Finally, Solove examines some applications of his approach. With a series of examples, he illustrates how privacy law has fixed itself too firmly to certain conceptions of privacy, and, as a result, has lost flexibility in dealing with emerging privacy problems. He then demonstrates how his approach can help courts conceptualize privacy in ways better adapted to address emerging privacy problems.
privacy, concept, Wittgenstein, pragmatism
Abstract: This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others. Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between public and private concerns. Traditional approaches include deferring to the media, distinguishing between public and private figures, and looking to the nature of the information disclosed. However, these approaches are flawed. Instead, we should focus on the relationships in which information is transferred and the uses to which information is put. The propriety of disclosures depends upon their purpose, not merely on the type of information disclosed. The Article analogizes to the law of evidence, in which certain information is admissible for some purposes but not others and then examines the values of free speech and argues that privacy often furthers the same ends, demonstrating that free speech should not always prevail in the balance. Next, the Article tackles the judgment and trust critique, which views personal information as essential for making judgments about whether to trust people with whom one associates. Although personal information can help facilitate judgments about other people, the Article contends that these judgments are often made quickly and out of context. In short, more information does not necessarily lead to more accurate judgments. The Article also contends that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information). The Article then responds to commentators who argue that gossip is valuable because it helps educate us about human nature and argues that the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure.
privacy, First Amendment, free speech, tort, disclosure, private facts, information, gossip, public concern, evidence, media, press
Abstract: What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention. It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.
bar, exam, jurisprudence, philosophy, dworkin, hart, llewellyn
Abstract: In this article, Professor Solove examines the increasing information flow from the private sector to the government, especially in light of the response to September 11, 2001. In today's Information Age, private sector entities are gathering an unprecedented amount of personal information about individuals, and the data is increasingly being accessed by government law enforcement officials. This government information gathering takes place outside the bounds of the Fourth Amendment, since the Supreme Court held in Smith v. Maryland and United States v. Miller that the Fourth Amendment does not apply to records held by third parties. Law enforcement officials can, with little restriction or judicial oversight, assemble what amounts to a digital dossier about a person by obtaining the personal details aggregated by various banks, businesses, websites, employers, ISPs, and other entities. On the other hand, access to information held by third parties is often critical to effective law enforcement. In light of the growing amount of personal data held by the private sector in the Information Age, to what extent should the government be restricted in its gathering of personal data from the private sector? In the void left by the Fourth Amendment, a series of statutes regulate government access to third party records, but this regime is woefully inadequate and ineffective. Reversing Smith and Miller will not work; the problem is far too complicated. Professor Solove explains why these solutions fail, and he proposes a new and far-reaching solution.
Fourth Amendment, privacy, dossiers, searches, law enforcement, security, records
Abstract: This short essay was written for the symposium, Bloggership: How Blogs are Transforming Legal Scholarship, held at Harvard Law School on April 27-28, 2006. In this essay, Professor Solove examines Glenn Reynold's new book, An Army of Davids, which champions little guy bloggers (the Davids) who are taking on mainstream media entities (the Goliaths). Who exactly is David? We have a rather romantic conception of bloggers; we envision Eugene Volokh, but most bloggers are probably more akin to Jessica Cutler, the U.S. Senate staffer who blogged about sex gossip. The average blogger is a teenager writing an online diary, not a scholar or amateur journalist. We see blogging as something that enhances freedom, expression, and self-development. But when blogging places gossip online, gossip transforms from being localized and forgettable to being permanent and widespread. We might find it harder to engage in self-exploration if every false step and foolish act is chronicled forever in a permanent record. Ironically, the unconstrained flow of information on the Internet might impede our self-development and freedom. Solove argues that the law should hold bloggers to a reasonable standard of care to avoid revealing private information about others.
blog, blogger, bloggership, gossip, privacy, free speech, defamation
Abstract: This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people's private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls "First Amendment criminal procedure." Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.
First Amendment, Fourth Amendment, Fifth Amendment, surveillance, free speech, press, criminal procedure, wiretapping, NSA, Wilkes, Entick
Abstract: During times of crisis, our leaders have made profound sacrifices in the name of security, ones that we later realized need not have been made. Examples include the Palmer Raids, the McCarthy Era anti-Communist movement, and the Japanese-American Internment. After September 11th, this tragic history repeated itself. The Bush Administration has curtailed civil liberties in many ways, including detaining people indefinitely without hearings or counsel. These events give Herman Melville's "Billy Budd" renewed relevance to our times. "Billy Budd" is a moving depiction of a profound sacrifice made in the name of security. This essay diverges from conventional readings that view "Billy Budd" as critiquing the rule of law. Instead, "Billy Budd" supplies us with a radical and unsettling set of insights about why our leaders often fail to do justice in times of crisis. The novella suggests that by manipulating procedure under the guise of law, Vere gives the appearance of following the rule of law, when, in fact, he is not. This is particularly illuminating, as the Supreme Court in Hamdi v. Rumsfeld has held that normal procedures required by the Due Process Clause can be modified and watered-down for enemy combatants. (This essay was written for a law and literature symposium at Cardozo Law School).
Billy Budd, Melville, privacy, security, Hamdi, Due Process, enemy combatants, literature, rule of law
Abstract: This essay critiques Professor Orin Kerr's provocative article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). Increasingly, Fourth Amendment protection is receding from a litany of law enforcement activities, and it is being replaced by federal statutes. Kerr notes these developments and argues that courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies. Kerr's key contentions are that (1) legislatures create rules that are more comprehensive, balanced, clear, and flexible; (2) legislatures are better able to keep up with technological change; and (3) legislatures are more adept at understanding complex new technologies. I take issue with each of these arguments. Regarding Kerr's first contention, I argue that Congress has created an uneven fabric of protections that is riddled with holes and weak safeguards. Kerr's second contention - that legislatures are better able to update rules quickly as technology shifts - is belied by the historical record, which suggests Congress is actually far worse than the courts in reacting to new technologies. As for Kerr's third contention, shifting to a statutory regime will not eliminate Kerr's concern with judges misunderstanding technology. In fact, many judicial misunderstandings stem from courts trying to fit new technologies into an old statutory regime that is built around old technologies. Therefore, while Kerr is right that our attention must focus more on the statutes, he is wrong in urging for a deferential judicial approach to the Fourth Amendment.
Fourth Amendment, search, seizure, surveillance, technology, judicial restraint, deference
Abstract: Richard Posner's Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posner's account of pragmatism from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough. We put Posner's account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, however, pragmatism devolves into an efficiency exercise - finding the appropriate means to achieve our given ends. Posner's account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society. In contrast, we return to the thought of the classical pragmatists (primarily John Dewey) to offer an alternative vision of pragmatism. This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. Although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead to internal inconsistencies with his own pragmatic commitments and to end up employing unpragmatic forms of reasoning. Posner finds himself in this position because the pragmatic ideas upon which he founds his theory have far more potent and revolutionary implications than Posner is willing to entertain. After setting forth his account of pragmatism, Posner attacks theories of deliberative democracy as unpragmatic. According to Posner, the pragmatist recognizes that it is too unrealistic and idealistic to expect most Americans to engage in meaningful political dialogue. Instead, Posner advances a concept of democracy based on the ideas of Joseph Schumpeter: Democracy should consist of a set of elite managers whose goal is to find the most efficient means to achieve our inherited ends. We argue that Posner's account of democracy is not pragmatic at all - even on his own terms. Under Posner's account, since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos. We contend that this conclusion is deeply flawed. Additionally, we demonstrate that certain central features of deliberative democracy, far from being unpragmatic, are, in fact, deeply connected to pragmatic inquiry.
Pragmatism, posner, dewey, democracy
Abstract: One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.
Both of these rules are widely-accepted. However, there is a major problem - in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.
The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.
First Amendment, civil liability, tort, contract, property, free speech, confidentiality, privacy, defamation, unconstitutional conditions, government employment
Abstract: This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin's principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.
Dworkin, Dostoyevsky, judging, jurisprudence
Abstract: Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that deference is a misguided attempt to carry out this principle in practice, an attempt based on an impoverished conception of how the judiciary and government institutions evaluate factual and empirical evidence.
consitutional law, deference, judicial review, bill of rights, law and fact
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