Introduction The Ninth Circuit’s recent opinion in Garcia v. Google, Inc. has attracted significant attention across the legal, political, and business worlds because of its possible implications for copyright law, free expression, and existing business models in the entertainment industry. The plaintiff, Cindy Lee Garcia, made several requests to Google’s YouTube to take down an…
Introduction This summer, the Federal Communications Commission (FCC) officially launched its third attempt to impose network neutrality rules on Internet traffic. But before the Commission could release its proposed regulations, they leaked to the Wall Street Journal and were quickly embroiled in controversy. Chief among the objections was the possibility that the new regulations would…
In December 2013, an editorial appeared in the Missoulian, a Montana-based newspaper, criticizing Missoula County Attorney Fred Van Valkenburg for a statement about his office’s handling of rape prosecutions: that attorneys in his office could review and work on those cases “whenever ‘they have spare time.’” Van Valkenburg published a defiant response. This exchange was part…
Introduction In Boumediene v. Bush, the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause, had “full effect” at Guantanamo Bay, Cuba. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause, should influence the analysis. After Boumediene, the D.C. Circuit…
The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on…
In Business Roundtable v. SEC, the D.C. Circuit struck down Rule 14a-11, which granted certain shareholders the right to nominate directors on the corporate proxy. The decision is important not only because it halted the SEC’s efforts to regulate proxy access, but also because it imposes a new requirement of cost-benefit analysis for financial regulation.…
When Tarikuwa Lemma was thirteen, she was sold. She and her two sisters were adopted by an Arizona family who were told Tarikuwa’s parents died of AIDS. The truth was that her mother had died during childbirth, but her father and her large extended family were alive and well—and capable of taking care of the…
A striking feature of proceedings at the Foreign Intelligence Surveillance Court (FISC) is that the executive always wins. Between 1979 and 2012—the first thirty-three years of the FISC’s existence—federal agencies submitted 33,900 ex parte requests to the court. The judges denied eleven and granted the rest: a 99.97% rate of approval. This “win rate,” enviable…
Introduction Oral arguments were recently held in the controversial case of Schuette v. Coalition to Defend Affirmative Action. At issue is the constitutionality of a 2008 amendment to the Michigan Constitution that prohibits public universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual on the basis of race, sex, color, ethnicity, or national…
While software patents and patent trolls dominate most patent discussions, the Supreme Court has focused on patents in the biotechnology and pharmaceutical space. In addition to deciding a number of antitrust cases involving such patents, the Court has in the last two Terms decided two cases involving the subject matter eligibility of biopharmaceutical patent claims.…
Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.
This Essay attempts to frame the conversation around de-identification. De-identification is a process used to prevent a person’s identity from being connected with information. Organizations de-identify data for a range of reasons. Companies may have promised “anonymity” to individuals before collecting their personal information, data protection laws may restrict the sharing of personal data, and,…
The adequacy of consumer privacy law in America is a constant topic of debate. The majority position is that United States privacy law is a “patchwork,” that the dominant model of notice and choice has broken down,[1] and that decades of self-regulation have left the fox in charge of the henhouse. A minority position chronicles…
Introduction Debates over information privacy are often framed as an inescapable conflict between competing interests: a lucrative or beneficial technology, as against privacy risks to consumers. Policy remedies traditionally take the rigid form of either a complete ban, no regulation, or an intermediate zone of modest notice and choice mechanisms. We believe these approaches are…
“Big data” can be defined as a problem-solving philosophy that leverages massive datasets and algorithmic analysis to extract “hidden information and surprising correlations.”[1] Not only does big data pose a threat to traditional notions of privacy, but it also compromises socially shared information. This point remains underappreciated because our so-called public disclosures are not nearly…
“Big Data” has attracted considerable public attention of late, garnering press coverage both optimistic and dystopian in tone. Some of the stories we tell about big data treat it as a computational panacea—a key to unlock the mysteries of the human genome, to crunch away the problems of urban living, or to elucidate hidden patterns…
Big data’s big utopia was personified towards the end of 2012. In perhaps the most underplayed tech moment in the first dozen years of the new millennium, Google brought The Singularity nearer,[1] hiring Ray Kurzweil not as its chief futurist but as its director of engineering. The man the Wall Street Journal dubbed a restless…
Legal debates over the “big data” revolution currently focus on the risks of inclusion: the privacy and civil liberties consequences of being swept up in big data’s net. This Essay takes a different approach, focusing on the risks of exclusion: the threats big data poses to those whom it overlooks. Billions of people worldwide remain…
Big data is transforming individual privacy—and not in equal ways for all. We are increasingly dependent upon technologies, which in turn need our personal information in order to function. This reciprocal relationship has made it incredibly difficult for individuals to make informed decisions about what to keep private. Perhaps more important, the privacy considerations at…
Introduction Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decisionmaking can now give us better predictions in areas ranging from college admissions to dating to hiring.[1]…
