Table of Contents

Privacy in the Clouds: An Empirical Study of the Terms of Service and Privacy Policies of 20 Cloud Service Providers

Dimitra Kamarinou, Queen Mary University of London, School of Law - Centre for Commercial Law Studies
Christopher Millard, Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Oxford Internet Institute
W. Kuan Hon, Queen Mary University of London, School of Law - Centre for Commercial Law Studies

Concepcion and Mis-Concepcion: Why Unconscionability Survives the Supreme Court's Arbitration Jurisprudence

Richard Frankel, Drexel University Thomas R. Kline School of Law

Privacy and Markets: A Love Story

Ryan Calo, University of Washington - School of Law, Stanford University - Law School

A Consumer's Fundamental Right to Equality in Terms of the Consumer Protection Act and the Role of the Promotion of Equality and Prevention of Unfair Discrimination Act

Jacolien Barnard, University of Pretoria
Anton Kok, University of Pretoria

Is Government Access to Your Communications Data Lawful? The Decision of the Divisional Court in Davis v Home Secretary

Michael H. Ryan, Arnold & Porter (UK) LLP


CONSUMER LAW eJOURNAL

"Privacy in the Clouds: An Empirical Study of the Terms of Service and Privacy Policies of 20 Cloud Service Providers" Free Download
Queen Mary School of Law Legal Studies Research Paper No. 209/2015

DIMITRA KAMARINOU, Queen Mary University of London, School of Law - Centre for Commercial Law Studies
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CHRISTOPHER MILLARD, Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Oxford Internet Institute
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W. KUAN HON, Queen Mary University of London, School of Law - Centre for Commercial Law Studies
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This paper is an empirical study of the Terms of Service and Privacy Policies of 20 cloud providers. Our study focuses on the ways these 20 cloud providers treat various key rights that individuals have under data protection law, either when they contract directly with a cloud provider or when they access cloud services through a business or institution, such as their employer, including the right to have their personal data processed fairly and lawfully, the right to be informed about the collection of data, the specific purposes of processing and the way their data may be shared with or disclosed to third parties, including law enforcement agencies. We also look at the right to access, correct or erase personal data, the right to object to processing, the right to object to direct marketing, and the right to have personal data processed securely and be protected from accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access to data. In addition, this paper discusses the providers’ approach to disputes arising out of the use of their cloud service and their approach to compensation and indemnification. This paper also uncovers common approaches adopted by providers and mismatches between their various legal documents, and highlights the advantages and disadvantages of various practices found in the study. Finally, we make some suggestions for more effective transparency and redress options for individuals, and conclude the paper with a number of practical findings arising from the review.

"Concepcion and Mis-Concepcion: Why Unconscionability Survives the Supreme Court's Arbitration Jurisprudence" Free Download
Journal of Dispute Resolution, Vol. 17, 2014
Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-05

RICHARD FRANKEL, Drexel University Thomas R. Kline School of Law
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States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with “fundamental attributes of arbitration.? Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an arbitration agreement and giving corporations carte blanche to impose whatever terms they want into an arbitration clause. Many practitioners are aggressively pushing courts to take a similarly broad reading of Concepcion and Italian Colors.

This article takes a contrary view. First, this article argues that the cases will have very little impact outside of the context of class action waivers, the subject matter of both Concepcion and Italian Colors. Applying state law to strike down arbitration provisions that are so one-sided as to be unconscionable ordinarily will not interfere with “fundamental attributes of arbitration? and should not be preempted.

Second, the Court’s newfound focus on “fundamental attributes of arbitration? reveals why Concepcion should actually narrow the scope of Federal Arbitration Act (FAA) preemption rather than expand it. A careful examination of arbitration clauses shows that, if anything, the “fundamental? aspect of arbitration is choice, that is, the ability of parties to freely negotiate the terms of their arbitration agreements in an arms-length fashion. If choice is fundamental to arbitration, then what is inconsistent with arbitration is a lack of choice, namely adhesion. As a result, states have much greater power than previously thought to ensure fairness in standard-form, non-negotiable adhesion contracts, in which most arbitration agreements are contained, without violating the FAA.

"Privacy and Markets: A Love Story" Free Download
Notre Dame Law Review, Forthcoming
University of Washington School of Law Research Paper No. 2015-26

RYAN CALO, University of Washington - School of Law, Stanford University - Law School
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Law and economics tends to be skeptical of privacy, finding privacy overrated, inefficient, and perhaps even immoral. Law should not protect privacy because privacy inhibits the market by allowing people to hide useful information.

Privacy law scholars tend to be skeptical of markets. Markets “unravel? privacy by penalizing consumers who prefer it, degrade privacy by treating it as just another commodity to be traded, and otherwise interfere with the values or processes that privacy exists to preserve.

This mutual and longstanding hostility obscures the significant degree to which privacy and markets assume and reply upon one another in order to achieve their respective ends.

For example, in a world without privacy, traditional market criteria such as price and quality can be overwhelmed by salient but extraneous information such as the political or social views of market participants. Meanwhile, imagine how much a government must know about its citizens to reject markets and distribute resources according to the maxim “from each according to his ability, to each according to his need.?

Conceiving of privacy and markets as sympathetic helps justify or explain certain legal puzzles, such as why the Federal Trade Commission — an agency devoted to free and open markets and replete with economists — has emerged as the de facto privacy authority in the United States. The account also helps build a normative case for political and other laws that enforce a separation between market and other information.

"A Consumer's Fundamental Right to Equality in Terms of the Consumer Protection Act and the Role of the Promotion of Equality and Prevention of Unfair Discrimination Act" Free Download
Journal of Contemporary Roman-Dutch Law, Vol. 78, p. 1-23, 2015

JACOLIEN BARNARD, University of Pretoria
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ANTON KOK, University of Pretoria
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The purpose of this contribution is to examine the provisions of Part A (sections 8 to 10) of the Consumer Protection Act (CPA) that regulate the fundamental consumer right to equality in the consumer market. It is the first time in the history of consumer law in South Africa that the right to equality entrenched in section 9 of the Bill of Rights in the Constitution is now also a specific fundamental consumer right available to consumers in terms of the CPA. The provisions of Part A of the CPA is unique in the sense that the test for unfair discrimination in the consumer market is based on one or more of the grounds of unfairness in terms of either section 9 of the Constitution or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act. In addition, the equality court is given exclusive jurisdiction over this Part of the CPA, a divergence from the routes of redress available to consumers in terms of section 69 of the CPA or the civil courts in the case of a contravention of Part G of the CPA (dealing with the consumer’s right to fair, just and reasonable terms and conditions). Section 8 which lists various forms of unfair discrimination is analysed and discussed as well as section 9 in terms of which certain differentiation by suppliers in the supply of goods or services (and the marketing thereof) may be justified with particular reference to minors and persons of at least 60 years of age. The presumption of unfair discrimination in section 10 is also investigated. Pertinent issues resulting from the analyses are discussed, including situations of price discrimination, students and “elderly persons? (persons of at least 60 years of age) as consumers, the role of the equality court as well as situations where not only the consumer’s right to equality but also other fundamental consumer rights may be infringed upon simultaneously.

"Is Government Access to Your Communications Data Lawful? The Decision of the Divisional Court in Davis v Home Secretary" Free Download

MICHAEL H. RYAN, Arnold & Porter (UK) LLP
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In July 2015, the English Divisional Court declared that the law requiring UK communications service providers to retain communications data of their customers so that it is available to law enforcement and national security authorities is incompatible with the rights to privacy and protection of personal data guaranteed by the EU Charter of Fundamental Rights. The judgment adds to pressure on government to reform the present data retention regime in a manner that affords greater protection to personal privacy. This note provides a critical examination of the judgment and views on the issues that the UK government must now address in replacement legislation in order to establish a Charter-compliant data retention regime.

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Consumer Law eJournal

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JEAN BRAUCHER
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