Hogan Lovells Senior Policy Advisor Leads Harvard Law Review Privacy Symposium
On Friday, November 9th, the Harvard Law Review held a symposium on privacy and technology. I helped the editors organize the event, and I gave the introduction, which will be published as the introductory essay.
I have posted a draft of my symposium essay on SSRN, where it can be downloaded free-of-charge. It will be published in the Harvard Law Review in 2013. My essay is entitled Privacy Self-Management and the Consent Paradox, and I discuss what I call the "privacy self-management model," which is the current regulatory approach for protecting privacy. The law provides people with a set of rights to enable them to decide for themselves about how to weigh the costs and benefits of the collection, use, or disclosure of their data. I demonstrate how this model fails to serve as adequate protection of privacy, and I argue that privacy law and policy must confront a confounding paradox with consent. Currently, consent to the collection, use, and disclosure of personal data often is not meaningful, but the most apparent solution -- paternalistic measures -- even more directly denies people the freedom to make consensual choices about their data.
On the first panel at the event, Professor Neil Richards (Washington University) discussed his essay on the harms of surveillance. He set forth a case for why surveillance was harmful in ways that are underappreciated by courts and how surveillance ought to be regulated. In particular, he noted that surveillance diminished “intellectual privacy” – the privacy that protects our ability to read, consume ideas, and speak. Professors Danielle Citron (University of Maryland) and Orin Kerr (George Washington University) provided commentary.
On the second panel, Professor Paul Schwartz (Berkeley) spoke about his essay about how to bridge the divide between US and EU approaches to privacy. He explained why privacy protection was so different in the US and EU and what were the driving forces behind the new EU legislation. He then made proposals for how the EU legislation should focus less on centralization of power and give the EU nations more flexibility in their approaches. Professors Joel Reidenberg (Fordham University), Danny Weitzner (MIT), and Latanya Sweeney (Harvard University) provided commentary.
The third panel featured Professor Julie Cohen (Georgetown), who spoke about her essay on the value of privacy and concerns about Big Data. Cohen argued that privacy protects creativity and eccentricity, and without privacy, these things can be blunted and result in a less robust democratic culture. She contended that the benefits of Big Data have often been exaggerated and that the value of privacy has often been unduly discounted. Professors Paul Ohm (Colorado, Senior Policy Advisor to the FTC), Tim Wu (Columbia University), and Thomas Crocker (University of South Carolina) provided commentary.
For the fourth panel, Professor Lior Strahilevitz (University of Chicago) presented his essay about privacy law’s winners and losers. He contended that privacy law has distributive effects – it sometimes helps some people but at the expense of others. When balancing the costs and benefits of privacy issues, we must take into account these distributive effects. Professors Anita Allen (University of Pennsylvania) and Alessandro Acquisti (Carnegie Mellon University) provided commentary.
Professor Jonathan Zittrain (Harvard University) provided a special presentation about the ways new technology was posing challenges to privacy. The day ended with the participants engaging in a roundtable discussion about the issues raised during the event.
You can read the other essays here. A video of the conference should be posted sometime soon.
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