The Surprising Virtues of Data Loyalty

71 Emory Law Journal 985 (2022)

50 Pages Posted: 13 Sep 2021 Last revised: 7 Jun 2022

See all articles by Woodrow Hartzog

Woodrow Hartzog

Boston University School of Law; Stanford Law School Center for Internet and Society

Neil M. Richards

Washington University School of Law; Yale Information Society Project; Stanford Center for Internet and Society

Date Written: September 11, 2021

Abstract

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim 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. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than vague and indeterminate. We propose five contexts in which specific rules should supplement a general duty of data loyalty: collection, personalization, gatekeeping, influencing, and mediation. Loyalty can be a key policy tool with which to take on the related problems of information capitalism, platform power, and the use of personal data to manufacture consent to objectionable data practices. In fact, loyalty may well be the critical missing piece of the regulatory toolkit for privacy.

Keywords: privacy, data, surveillance, loyalty, fiduciary, torts, harm, care, data protection, technology, internet

Suggested Citation

Hartzog, Woodrow and Richards, Neil M., The Surprising Virtues of Data Loyalty (September 11, 2021). 71 Emory Law Journal 985 (2022), Available at SSRN: https://ssrn.com/abstract=3921799

Woodrow Hartzog (Contact Author)

Boston University School of Law ( email )

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HOME PAGE: http://https://www.bu.edu/law/profile/woodrow-hartzog/

Stanford Law School Center for Internet and Society ( email )

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HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

Neil M. Richards

Washington University School of Law ( email )

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St. Louis, MO 63130
United States
314.935.4794 (Phone)

HOME PAGE: http://law.wustl.edu/faculty-staff-directory/profile/neil-richards/

Yale Information Society Project ( email )

New Haven, CT 06520
United States

Stanford Center for Internet and Society ( email )

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Stanford, CA 94305-8610
United States

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