Digital Privacy

Digital Privacy

Mr. Michael Fertik
Spring 2018 reading group
T, W, Th 5:00pm - 7:00pm
1 classroom credit

Prerequisites: None

Exam Type: No Exam

The law and reality of digital privacy are undergoing seismic shift. This course will examine the sources of that shift, predict where it will take take us in the coming decade, and consider how we might hasten or avoid the better and worse parts of the future. The course will leverage the "middle distance horizon" -- 2027 -- as a prism through which to examine the most radical and difficult of today's privacy questions, chiefly as they present in the fields of law and technology. We will seek to identify the privacy-related trends that appear "inevitable" as of now and the ones that may more readily be shaped or thwarted through acts of law or the market. We will aim to classify the principal objectives of privacy as well as levers that may exist to advance or forestall their interests. The levers we shall consider will include new statute or regulation, public and private enforcement of existing law, and technical or commercial innovation.

To inform our discussion, we will explore key drivers of privacy outcomes. We will examine the role of disruptive technologies, such as Google Glass, drones, Snapchat, super cookies, wearables, and the Internet of Things. We will analyze the economics of digital privacy and the Big Data "advertising" economy of Silicon Valley. We will consider the systemic impact of both legacy and cutting edge choices of technical architecture, including provenance-stamping of data, the Internet authentication layer, and the Three Laws of Digital Privacy. We will also examine highly levered "soft variables" such as the habits and incentives of the corporate Chief Privacy Officer, who often finds herself balancing between the distinguishable postures of "Compliance" and "Privacy." We will finally consider how classical forms of law can keep up with rapid changes in technology, whether through updating of statute and regulation or application of existing tools by increasingly savvy regulators.

The course will pay special attention to the emerging nexus between Big Brother -- the traditional focus of both privacy advocacy specifically and American rights-based study generally -- and the increasingly omniscient panopticon of Little Brother, the class of private companies that are building rich profiles of our lives. We will weigh the considerable advantages of public and private Big Data -- and the intermingling of the same -- against the erosion of privacy they possibly necessitate. As ongoing revelations of massively scaled government surveillance indicate and will surely continue to indicate by the start of this class in Spring 2015, private companies possess data without which even liberal regimes do not think they can operate.

Materials will include fundamental and immediately contemporary texts relevant to digital privacy. In addition, we can anticipate visits to our class by senior figures in the privacy landscape, including, for example, senior privacy regulators, senior corporate officers responsible for Big Data and privacy, startup founders and/or investors, and leading global journalists on the privacy beat. No technical knowledge is assumed.

For the sake of focus, our course will be limited to examination of personal privacy, not corporate interests in privacy. We will likewise focus on digital privacy chiefly outside the scope of healthcare (e.g. HIPAA), though the impact of Internet privacy on health provision will be considered. We will focus on the US and EU privacy landscape, though occasional enforcement action or statutory exemplars from other jurisdictions will be considered.

Note: This reading group will meet during the weeks of 4/9 and 4/16/2018.

Drop Deadline: April 10, 2018 by 11:59 pm EST

Subject Areas: Intellectual Property, Cyberlaw and Technology, and Arts & Entertainment, International, Comparative & Foreign Law