Monthly Archives: January 2022

New Paper: “Safety as Privacy”

Three or four years ago I sat down to write a paper about how, even without any new privacy legislation, there was a lot that U.S. administrative agencies could do under existing powers to enhance personal privacy if they were so minded. As I started writing the introduction to that piece, I went looking for a citation for a proposition that I thought was obvious, and that many other people also take for granted: that often privacy enhances safety. To my amazement, I couldn’t find a clear statement of the proposition anywhere, although there were plenty of people willing to explain why they thought anonymity made people unsafe, as it let the bad guys toil in the darkness. Which is undoubtedly true sometimes, but far from the whole story.

So, back then, instead of writing the paper I wanted to write, I wrote what I thought of as the prequel, which became Privacy as Safety, 95 Wash. L. Rev. 141 (2020), (with Zak Colangelo).

Now, finally, I, along with co-authors Phillip Arencibia and P. Zak Colangelo-Trenner, have a draft of the paper I originally wanted to write. We’ve just put it up on SSRN as Safety as Privacy.

Here’s the abstract:

New technologies, such as internet-connected home devices we have come to call ‘the Internet of Things (IoT)’, connected cars, sensors, drones, internet-connected medical devices, and workplace monitoring of every sort, create privacy gaps that can cause danger to people. In Privacy as Safety, 95 Wash. L. Rev. 141 (2020), two of us sought to emphasize the deep connection between privacy and safety, in order to lay a foundation for arguing that U.S. administrative agencies with a safety mission can and should make privacy protection one of their goals. This article builds on that foundation with a detailed look at the safety missions of several agencies. In each case, we argue that the agency has the discretion, if not necessarily the duty, to demand enhanced privacy practices from those within its jurisdiction, and that the agency should make use of that discretion.

This is the first article in the legal literature to identify the substantial gains to personal privacy that several U.S. agencies tasked with protecting safety could achieve under their existing statutory authority. Examples of agencies with untapped potential include the Federal Trade Commission (FTC), the Consumer Product Safety Commission (CPSC), the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), the Federal Aviation Administration (FAA), and the Occupational Safety and Health Administration (OSHA). Five of these agencies have an explicit duty to protect the public against threats to safety (or against risk of injury) and thus – as we have argued previously – should protect the public’s privacy when the absence of privacy can create a danger. The FTC’s general authority to fight unfair practices in commerce enables it to regulate commercial practices threatening consumer privacy. The FAA’s duty to ensure air safety could extend beyond airworthiness to regulating spying via drones. The CPSC’s authority to protect against unsafe products authorizes it to regulate products putting consumers’ physical and financial privacy at risk, thus sweeping in many products associated with the IoT. NHTSA’s authority to regulate dangerous practices on the road encompasses authority to require smart car manufacturers include precautions protecting drivers from misuses of connected car data due to the car-maker’s intention and due to security lapses caused by its inattention. Lastly, OSHA’s authority to require safe work environments encompasses protecting workers from privacy risks that threaten their physical and financial safety on the job.

Arguably an omnibus, federal statute regulating data privacy would be preferable to doubling down on the U.S.’s notoriously sectoral approach to privacy regulation. Here, however, we say only that until the political stars align for some future omnibus proposal, there is value in exploring methods that are within our current means. It may be only second best, but it is also much easier to implement. Thus, we offer reasonable legal constructions of certain extant federal statutes that would justify more extensive privacy regulation in the name of providing enhanced safety, a regime that would we argue would be a substantial improvement over the status quo yet not require any new legislation, just a better understanding of certain agencies’ current powers and authorities. Agencies with suitably capacious safety missions should take the opportunity to regulate to protect relevant personal privacy without delay.

And here’s the table of contents:

It’s just a draft so comments (and offers to publish in a law review) are welcome!

Posted in Law: Privacy, Writings | Comments Off on New Paper: “Safety as Privacy”

L’enfer, C’est Les Autres

Rodin, The Gates of Hell

Rodin, The Gates of Hell, Jahuey, CC BY-SA 4.0, via Wikimedia Commons

Pervasive surveillance is evil.  Viz, The Downside to Surveilling Your Neighbors: In one town, police say products like Nextdoor and Ring are helping fight crime. But racism and vigilantism are pervasive on safety platforms.

The problem, though, isn’t the tech so much as us. Political science research supports the unsurprising hypothesis that some people are just jerks, and that the online world’s supposed lower barrier to entry to expressing that jerkiness is not a big factor: online jerkiness is just easier to see since you don’t have to be in the room where it happened:

[H]ostile political discussions are the result of status-driven individuals who are drawn to politics and are equally hostile both online and offline. Finally, we offer initial evidence that online discussions feel more hostile, in part, because the behavior of such individuals is more visible online than offline.

It follows that banning the tech turns out to be more a sweeping-under-the-rug approach than a game changer or even a behavior modification strategy. Yes, even if the tech is Facebook.

Pending the advent of better people all around–an approach to neighbors that was tried and failed in the Cultural Revolution and the killing fields of Cambodia–what are we to do about this? I do not think that sensitivity training is the answer any more than prohibition.

Posted in Surveillance | 1 Comment

Research Assistant Wanted

Copright 'brizzle born and bred' Some rights reserved, would like to hire a UM 1L or 2L to be my research assistant for 10-15 hours/week during the coming semester. If things work out we might continue into the summer, and/or next year.

The work primarily involves assisting me with legal research relating to papers I am writing on artificial intelligence, privacy, and on Internet regulation but also helping out on other random things.

I need someone who can write clearly and is well-organized.

The pay of $13 / hr is set by the university, and is not as high as you deserve, but the work is sometimes interesting.

If this sounds attractive, please e-mail me the following with the subject line RESEARCH ASSISTANT 2022 (in all caps), followed by your name:

  1. A note telling me

* Where you saw this announcement
* How many hours you would ideally like to work per week (10-12 is quite normal)
* When you are free to start.
* Your phone number and email address.
* Several times you would be free to meet for an interview in the next week or so.

  1. A copy of your resume (c.v.).

  2. A transcript of your grades (need not be an official copy).

  3. If you have one handy, also attach a short NON-legal writing sample. If you have none, I’ll accept a legal writing sample (whatever you do, though, please don’t send your L-Comm memo as it’s too hard to tell how much they’ve been edited by your instructor).

  4. If you happen to have any experience with WordPress site design, or with Unix, or system administration, please mention that, as I may have a second job available for someone with some of these skills.

I look forward to speaking with you.

Posted in Law School, U.Miami | Comments Off on Research Assistant Wanted

It’s January 6th. Do You Know Where Your Democracy Is?

When I saw the storming of the Capitol live on TV (we had turned on the TV on a whim to see the certification of the vote, not suspecting anything untoward) I had some trouble taking it sufficiently seriously: a man cosplaying as shaman? Really? Surreal, yes, but the end of an era? Rioters moving almost single file between the ropes in a visitors’ area a bit like a tour group? Surely not an invading army. It wasn’t until we saw the violence, the noose, and then read about the parts we had not seen that I started thinking ‘Beer Hall Putch”.

And then, slowly, the drip, drip of revelations–there was a lot more planning for a coup than it had seemed. And Vice President Mike Pence’s finest hour might not have been just refusing to play along with a coup, but his refusal to get into a car and let the Secret Service drive him away from the Capitol.

Well, it’s a year later (unless “every day is Jan. 6th now“?). Things don’t look so great. As Donald Kagan says, Our constitutional crisis is already here. Was 2021 “The year accountability died“? Will the Jan 6 Committee be enough? It’s a lot to ask of a committee.

Meanwhile, at least we can still laugh.

For now

Image from Meme Generator via Crooks & Liars

Posted in 2020 Election, Post-Madness, Trump | 1 Comment

Two Slices of Life

© 2007 James Cridland. Some rights reserved.

Today’s paper brought two slice-of-life articles I thought were notable. One relates to the improbable story of a Portuguese immigrant to Montreal who accidentally reinvented himself as the city’s go-to bar/bat mitzvah photographer. The other, slice-of-life in the sense of an obituary, chronicles the career of Ben McFall, ‘the Heart of the Strand’ in Manhattan.

Posted in Readings | Comments Off on Two Slices of Life