Sep 132014
 
 September 13, 2014  Misc

Some recently added articles on privacy that may interest you:

Thierer, Adam D. The Internet of Things & Wearable Technology: Addressing Privacy & Security Concerns Without Derailing Innovation  (September 10, 2014). Available at SSRN: http://ssrn.com/abstract=2494382 (65 pp.)

Abstract:

This paper highlights some of the opportunities presented by the rise of the so-called “Internet of Things” and wearable technology in particular, and encourages policymakers to allow these technologies to develop in a relatively unabated fashion. As with other new and highly disruptive digital technologies, however, the Internet of Things and wearable tech will challenge existing social, economic, and legal norms. In particular, these technologies raise a variety of privacy and safety concerns. Other technical barriers exist that could hold back IoT and wearable tech — including disputes over technical standards, system interoperability, and access to adequate spectrum to facilitate wireless networking — but those issues are not dealt with here.

The better alternative to top-down regulation is to deal with these concerns creatively as they develop using a combination of educational efforts, technological empowerment tools, social norms, public and watchdog pressure, industry best practices and self-regulation, transparency, and targeted enforcement of existing legal standards (especially torts) as needed. This “bottom-up” and “layered” approach to dealing with problems will not preemptively suffocate experimentation and innovation in this space. This paper concludes by outlining these solutions.

Finally, and perhaps most importantly, we should not overlook the role societal and individual adaptation will play here, just as it has with so many other turbulent technological transformations.

Miller, Akiva A. What Do We Worry About When We Worry About Price Discrimination? The Law and Ethics of Using Personal Information for Pricing (2014). Journal of Technology Law & Policy, Vol. 19, p. 41, 2014. Available at SSRN: http://ssrn.com/abstract=2315315 (64 pp.)

Abstract:

New information technologies have dramatically increased sellers’ ability to engage in price discrimination in retail consumer markets. Debates over using personal information for price discrimination frequently treat it as a single concern, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different concerns they raise. This paper explores the ethical aspects of the debate over regulating price discrimination facilitated by personal information. By drawing distinctions between various pricing practices and the motivations behind them, this paper seeks to clarify the ethical principles that should guide legal and regulatory efforts to control the use of personal information for pricing.

Deeks, Ashley. An International Legal Framework for Surveillance (September 1, 2014). Virginia Journal of International Law, Vol. 55, 2015 Forthcoming. Available at SSRN: http://ssrn.com/abstract=2490700 (72 pp.)

Abstract: 

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

Smith, Michael L. Regulating Law Enforcement’s Use of Drones: The Need for State Legislation (September 5, 2014). Available at SSRN: http://ssrn.com/abstract=2492374 or http://dx.doi.org/10.2139/ssrn.2492374

Abstract: 

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

 

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