The latest Harvard Law Review – Privacy Edition

May 21, 2013 |

The latest edition of the Harvard Law Review was released today (Volume 126 Number 7).  It is notable because it includes papers delivered at a Symposium on Privacy And Technology.

The Papers are:

Introduction: Privacy Self-Management and the Consent Dilemma.

The extract reads as follows:

Symposium by Daniel J. Solove :: During the past decade, the problems involving information privacy — the ascendance of Big Data and fusion centers, the tsunami of data security breaches, the rise of Web 2.0, the growth of behavioral marketing, and the proliferation of tracking technologies — have become thornier. Policymakers have proposed and passed significant new regulation in the United States and abroad, yet the basic approach to protecting privacy has remained largely unchanged since the 1970s. Under the current approach, the law provides people with a set of rights to enable them to make decisions about how to manage their data. These rights consist primarily of rights to notice, access, and consent regarding the collection, use, and disclosure of personal data. The goal of this bundle of rights is to provide people with control over their personal data, and through this control people can decide for themselves how to weigh the costs and benefits of the collection, use, or disclosure of their information. I will refer to this approach to privacy regulation as “privacy self-management.”

What Privacy is For

The extract reads as follows:

Symposium by Julie E. Cohen :: Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — antiprogressive, overly costly, and inimical to the welfare of the body politic. Privacy advocates resist this framing but seem unable either to displace it or to articulate a comparably urgent description of privacy’s importance. No single meme or formulation of privacy’s purpose has emerged around which privacy advocacy might coalesce. Pleas to “balance” the harms of privacy invasion against the asserted gains lack visceral force.

The Dangers of Surveillance

The extract reads as follows:

Symposium by Neil M. Richards :: From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures

The extract reads as follows:

Symposium by Paul M. Schwartz :: Internet scholarship in the United States generally concentrates on how decisions made in this country about copyright law, network neutrality, and other policy areas shape cyberspace. In one important aspect of the evolving Internet, however, a comparative focus is indispensable. Legal forces outside the United States have significantly shaped the governance of information privacy, a highly important aspect of cyberspace, and one involving central issues of civil liberties.

Toward a Positive Theory of Privacy Law

The extract reads as follows:

Symposium by Lior Jacob Strahilevitz :: Privacy protections create winners and losers. So does the absence of privacy protections. The distributive implications of governmental decisions regarding privacy are often very significant, but they can be subtle too. Policy and academic debates over privacy rules tend not to emphasize the distributive dimensions of those rules, and many privacy advocates mistakenly believe that all consumers and voters win when privacy is enhanced. At the same time, privacy skeptics who do discuss privacy in distributive terms sometimes score cheap rhetorical points by suggesting that only those with shameful secrets to hide benefit from privacy protections. Neither approach is appealing, and privacy scholars ought to do better.

The  quality of papers is excellent. While the law in the USA differs significantly from that of Australia, both in term of statutory structure and the common law the principles dealt with in most of these papers deal with the philosophical and policy issues.

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