Syllabus
WEEK 1: Introduction & Theories of Privacy
August 26: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Warren & Brandeis, The Right to Privacy
Waldman, Privacy As Trust (Introduction, Chapter 1, and Chapter 2)
Questions while you read:
1. What does it mean to be a "private" person, as implied in Sidis?
2. What is your opinion of the Sidis decision? Try to support your view with both your intuition (we haven't read the caselaw yet!) and case analysis?
3. What is Brandeis & Warren's central thesis? What is their conception of "privacy"? We are going to spend quite a bit of time discussing this article, so I recommend mapping out their argument in detail.
4. How is intellectual property relevant to the Brandeis/Warren thesis?
5. How are the different theories of privacy similar? How are they different? Try to articulate differences between each and between groups of theories.
6. How has the concept of privacy changed over time?
7. What are the drawbacks of strong privacy regimes?
privacy, Harassment & Content
WEEKS 2 & 3: Intrusion Upon Seclusion & Public Disclosure of Private Facts
August 31: Recorded Lecture (SLIDES)
September 2: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Restatement (Second) of Torts 652B & D
September 9: Live Zoom (9:30 AM-10:55 AM Eastern) (Replaced by out-of-class assignment due to our TA via email by 5PM Eastern on September 15).
Reading:
Daily Times Democrat v. Graham
Sipple v. Chronicle Publishing
Strahilevitz, A Social Networks Theory of Privacy
Questions while you read:
1. What are the elements of an intrusion upon seclusion claim?
2. Develop examples of activities that you think are captured by this claim?
3. Is the claim narrow or broad?
4. Was the information in Nader, Dietmann, and Desnick "private" or "public"? On what bases did the courts answer that question?
5. Do you agree with the holdings in all three cases?
6. What are the elements of the tort of public disclosure of private facts?
7. Can you find a pattern in how the courts in the cases we read determine what kind of information is private and what kind of information is public?
8. What is similar/different in the actions of the plaintiffs in each case?
Week 4: Confidentiality & Anonymity
September 14: Recorded Lecture (SLIDES)
September 16: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Neil Richards & Dan Solove, Privacy's Other Path (excerpt)
McIntyre v. Ohio Elections Commission
Columbia Ins. v. Seescandy.com
Doe v. Individuals Whose True Names Are Unknown
McGeveran Casebook 282-296 (through Note 3) (Google Spain v. AEPD, Mario Gonzalez)
Questions while you read:
1. What are the elements of the tort of breach of confidentiality?
2. In what circumstances has it been applied in the past?
3. What are the differences between British and American approaches to the tort?
4. Can you think of other circumstances in which the tort claim can be used?
WEEKS 5-6: the limits of tort liability and the revenge porn/deep fake problem
September 21: Recorded Lecture (SLIDES)
September 23: Take Home Assignment in lieu of class on Revenge Porn/Deep Fake draft legislation.
Readings:
McGeveran Casebook 149-160 (including CDA Section 230, SC v. Dirty World, Gawker Media v. Bollea)
Fair Housing Council v. Roommates.com
Danielle Citron & Benjamin Wittes, The Internet Will Not Break
Citron & Franks, Criminalizing Revenge Porn
Levendowski, Our Best Weapon Against Revenge Porn: Copyright Law?
Waldman, A Breach of Trust: Fighting Revenge Porn
Citron & Chesney, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security
Questions while you read:
1. What are the rationales for or against Section 230?
2. Can you answer Q1 with reference to the Dirty World and Hulk Hogan cases?
3. If you had to write a revision to Section 230, what, if anything, would it be?
4. Was the Hulk Hogan case decided correctly? It eventually ruined Gawker even though Hogan lost the preliminary injunction.
5. Does it matter that the case was bankrolled by Peter Thiel, who had a beef against Gawker?
Data Collection &
Consumer Privacy
Consumer Privacy
Week 7-8: the law of notice, choice, and disclosure
September 30: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Julie Cohen, Review of Zuboff's Age of Surveillance Capitalism
Amy Kapczynski, The Law of Informational Capitalism
October 5: Recorded Lecture (Can we use tort or contract law to protect privacy?) (Slides)
October 7: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
McGeveran Casebook 327-332 (Cookies)
McGeveran Casebook 166-178 (through Note 5) (In re Northwest Airlines Property Litigation, In re Jet Blue Privacy Litigation)
October 12: Recorded Lecture (What are "Dark Patterns"?) (SLIDES)
(NOTE: I recognize that we don't have class on October 12. But you can watch this short recording at your convenience. It will also take the place of a class later in the semester.).
Mathur et al., "Dark Patterns at Scale: Findings from a Crawl of 11K Shopping Websites"
October 14: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
California Online Privacy Protection Act
Waldman, Cognitive Biases, Dark Patterns, and the "Privacy Paradox"
John, Acquisti, Loewenstein, "Strangers on a Plane: Context-Dependent Willingness to Divulge Sensitive Information"
Questions while you read:
1. What were the plaintiffs objecting to in these cases?
2. Why did the plaintiffs turn first to tort law claims to address their data claims?
3. What were two problems with making a successful tort claim?
4. What are the contract claims based on?
5. Summarize the plaintiffs claims. Be able to articulate their prima facie cases.
6. What are the barriers to success in these cases? Do you agree with the courts' decisions to toss out these lawsuits?
7. What is the "notice and choice" regime?
8. What are the purposes of privacy policies?
Week 9: The FTC & Sectoral Laws
October 19: Recorded Lecture
October 21: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
McGeveran Casebook 206 (Notes 3 and 4)
McGeveran Casebook 212 (Note 3)-226 (including In the Matter of Snapchat)
McGeveran Casebook 833-843 (through Note 4) (Video Protection Privacy Act, Sterk v. Redbox, In re Hulu Privacy Litigation)
Questions while you read:
1. What does it mean when we say that federal statutes regulating privacy are sectoral?
2. We are going to do some statutory interpretation work in class. Do a close reading of the statutes in the cases. What are the most important elements of a VPPA claim?
3. Can you think of some examples of entities to which the VPPA applies?
4. What kind of data is "personally identifiable information" per Hulu Privacy Litigation?
5. What is the reach of the FTC's authority to protect consumer privacy?
6. What did Snapchat do wrong, per the FTC's complaint? Do you agree that these are "unfair" or "deceptive" practices?
7. How do FTC enforcement actions generally resolve? Do you agree with this strategic approach?
Week 10: The GDPR and the "New" Privacy Law
October 26: Recorded Lecture
Reading:
California Consumer Privacy Act
The GDPR (review Articles 5-43 ... it's not that long)
Waldman, Privacy Law's False Promise
October 28: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Be prepared to discuss the above.
Questions while you read:
What are some of the differences, if any, between the California Consumer Privacy Act and traditional notice and choice as we discussed?
What are the differences, if any, between the GDPR and the CCPA?
Is the GDPR a "consent-based" regime? What, if anything, does the GDPR add to consent?
What are some of the reasons why the GDPR adequately and inadequately protects privacy?
week 11: privacy law proposals
November 2: Take home activity comparing privacy proposals
Reading:
Balkin, Information Fiduciaries and the First Amendment (pp. 1205-1234)
Center for Democracy and Technology discussion draft for privacy legislation
The Mind Your Own Business Act of 2019
Comparing privacy laws and proposals CHART
Questions while you read:
1. What is an "information fiduciary"? Do you agree with the approach? What advantages does it have over notice-and-choice? What challenges does it still face?
2. Are there any analogies you can think of to specify the duties under an information fiduciary approach?
3. How, if at all, would a fiduciary approach change the digital privacy landscape?
government surveillance
week 11: privacy, race, and power
November 4: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
John Fiske, "Surveilling the City: Whiteness, the Black Man, and Democratic Totalitarianism."
Beverly Gage, "What an Uncensored Letter to MLK Reveals."
McKenzie Funk, "How ICE Finds Its Targets in the Surveillance Age."
Khiara Bridges, "Privacy Rights and Public Families" (pp. 113-121, 129-133)
Questions while you read:
What is the role of data in the maintenance of traditional power structures?
What kind, if any, privacy laws could counterbalance or resist this power? Is there any hope for change?
This is really just the tip of the iceberg when it comes to data and oppression of Black/queer persons and members of other marginalized groups. What does this tell you about the discourse of "innovation" from Silicon Valley et al?
week 12: Third Party Doctrine, Sensory Enhancing Technologies
November 9: Recorded Lecture
November 11: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Smith v. Maryland (only the majority opinion)
Carpenter v. US (majority and concurrences)
McGeveran Casebook 28-42 (through Note 2) (Riley v. California)
Tokson & Waldman, Social Norms and the Fourth Amendment (forthcoming Michigan Law Review)
Questions while you read:
1. Describe the evolution from Olmstead to Katz?
2. What theories of privacy are reflected in the majorities and dissents?
3. How do these cases draw the line between what is public and what is private in the Fourth Amendment context?
4. What is the Third Party Doctrine? What were the rationales for it when the Court created it? Do those rationales still make sense today? Why or why not? Be able to articulate both sides of the argument.
5. How do the cases draw the line between public and private? Are you noticing any patterns?
6. What are the technologies employed in these cases?
7. How are the technologies similar? How are they different?
8. What is the difference between sensory "enhancing" and sensory "creating" technologies?
9. Do you think that the use of technology should make any difference from a Fourth Amendment perspective? Why or why not?
Week 13-14: National Security & Schrems
November 16: No Lecture. Reversed classroom, prepare questions for group discussion for you to deliver in class on November 18.
Reading:
Schrems II (summary)
November 18: Live Zoom (9:30 AM-10:55 AM Eastern) (Reversed Classroom)
Reading: Be prepared to discuss the above and your videos/recordings
November 23: No Class
secondary uses of data
week 15: AI and Facial Recognition
November 30: No recorded lecture (This class time was taken up by your out-of-class assignments). You are encouraged to use this time to research your final exams and ask anonymous questions on the course website discussion page.
December 2: Live Zoom (9:30 AM-10:55 AM Eastern)
Reading:
Julia Angwin et al., "Machine Bias," ProPublica
Amit Datta et al, Automated Experiments on Ad Privacy Settings
Kate Crawford, Artificial Intelligence's White Guy Problem
Aylin Caliskin et al., Semantics Derived Automatically from Language Corpora Contain Human-Like Biases
IEEE Spectrum, AI Learns Gender and Racial Biases from Language
Evan Selinger & Woodrow Hartzog, “Amazon Needs to Stop Providing Facial Recognition to the Government,” Medium
Woodrow Hartzog & Evan Selinger, “Facial Recognition is the Perfect Tool of Oppression,” Medium
Questions while you read:
1. What is facial recognition technology and how does it work?
2. What kinds of problems does facial recognition technology pose? Are they privacy problems? Democracy problems? Both?
3. Are there law and policy levers we can deploy to address this problem?
4. Is it even possible to design facial recognition technology to protect personal privacy?
5. How do machines learn to be biased?
6. Describe some of the factors responsible for bias in artificial intelligence?
7. What can we do about it?
8. What does this have to do with privacy?