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Privacy, the Hacker Way

68 Pages Posted: 22 Jul 2017  

Andrea M. Matwyshyn

Northeastern University - School of Law; Princeton University - Center for Information Technology Policy; Stanford University - Stanford Law School Center for Internet and Society

Date Written: August 1, 2013

Abstract

This Article seeks to clarify the relationship between contract law and promises of privacy and information security. It challenges three commonly held misconceptions in privacy literature regarding the relationship between contract and data protection — the propertization fatalism, the economic value fatalism, and the displacement fatalism — and argues in favor of embracing contract law as a way to enhance consumer privacy. Using analysis from Sorrell v. IMS Health Inc., marketing theory, and the work of Pierre Bourdieu, it argues that the value in information contracts is inherently relational: consumers provide “things of value” — rights of access to valuable informational constructs of identity and context — in exchange for access to certain services provided by the data aggregator. This Article presents a contract-based consumer protection approach to privacy and information security. Modeled on trade secret law and landlord-tenant law, it advocates for courts and legislatures to adopt a “reasonable data stewardship” approach that relies on a set of implied promises — nonwaivable contract warranties and remedies — to maintain contextual integrity of information and improve consumer privacy.

Keywords: Contract, Security, Privacy, Cyber, Internet

JEL Classification: Z18

Suggested Citation

Matwyshyn, Andrea M., Privacy, the Hacker Way (August 1, 2013). Southern California Law Review, Vol. 87, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=3004803

Andrea M. Matwyshyn (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Princeton University - Center for Information Technology Policy ( email )

C231A E-Quad
Olden St.
Princeton, NJ 08540
United States

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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