Jun 082020
 June 8, 2020  Posted by  Featured News

It was another thought-provoking Privacy Law Scholar’s Conference this year, although it was held in the virtual environment. Law professors Daniel Solove and Chris Hoofnagle did an amazing job taking this annual event and trying to translate some of its best features into the virtual space.  I did not manage to see everyone I usually run into or chat with at the annual conferences, but on a positive note, I actually had less trouble hearing people as I sat there in my office with my little pink earbuds.

Because Chatham House rules apply, I will not name names, but it was clear that across a number of papers and perspectives, privacy law scholars and activists seem to have all come to the conclusion that “notice and consent” is a failed approach. Giving more “tools” to consumers that just puts more burden on consumers to read and take steps to protect ourselves does not and will not work.  It’s time to stick a fork in notice-and-consent or approaches that require us to spend all of our time reading policies or trying to figure out how to opt out. It’s time to look at other solutions.  And to that end, there were a number of proposed approaches.

I can’t say that any of the proposals I read struck me as sufficiently fleshed out yet to evaluate, but the fact that there seemed to be a consensus that we need a radically different approach than what we have been doing was a powerful take-home message.

So we have our work cut out for us. Whether it’s taking a more critical look at COVID-19 tracing and contact apps or policies, or looking at whether always-on listening devices are violating state and federal wiretap laws, or how we shift the courts to recognizing privacy harms so that cases are not thrown out of court for lack of standing, there’s a lot that needs to be addressed.  Although there are those who will continue to try to tell us to “get over” privacy and to just resign ourselves to a more dystopian world,  I think some of us are more resolved than ever to protect privacy — for society’s sake and for our own personal sake.

A number of privacy law scholars are writing books that will help inform the public and hopefully, legislators. I hold out little hope, though, that Congress will do anything useful and they may actually do things that are counterproductive, but I do hope that state legislatures will take action to protect their residents. NYS’s SHIELD Act gives me some hope that way.

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