PRIVACY + SECURITY BLOG

News, Developments, and Insights

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Cartoon: Tech Companies, Innovation, and Regulation

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Here’s my new cartoon about how many tech companies extol innovation, yet seem to lose that innovative spirit when it comes to regulation. With the right incentives, it’s amazing how tech companies can rise to the challenge. They can certainly innovate to address regulatory demands; instead, they often send in lobbyists to pout and complain or to block laws. It would be better for companies to try to innovate for regulation rather than fight it.  Policymakers might look to use some carrots rather than just sticks. Positive incentives can help steer tech companies to address regulatory concerns.

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Cartoon: AI Apocalypse

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Here’s a new cartoon on AI. On AI turning against us and killing us all, I have a prediction – and it’s both good and bad. The good: I don’t think AI will decide to kill us all. The bad: We will be the ones to decide. We’ll replace ourselves with machine parts and code until nothing human remains . . . that is, of course, if we don’t destroy our planet first.

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Webinar – GDPR Enforcement: A Conversation with Max Schrems Blog

In case you missed my discussion with Max Schrems, you can watch the replay here.  We discussed cross-border data transfer, litigation challenges and strategies, and potential reforms of the GDPR enforcement process.

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First Amendment Expansionism and California’s Age-Appropriate Design Code

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The recent district court decision in NetChoice v. Bonta (N.D. Cal., Sept. 18, 2023) holding that the California Age-Appropriate Design Code (CAADC) likely violates the First Amendment is a ridiculously expansive interpretation of the First Amendment, one that would annihilate most regulation if applied elsewhere.  This decision is one of a new breed of opinions that I will call “First Amendment expansionism,” which turn nearly everything in the universe into a free speech issue.  The Fifth Circuit recently held that the government’s encouraging platforms to take down misinformation and harmful content was a First Amendment violation because somehow it was unduly coercive . . . as if these platforms, which are some of the most powerful organizations the world has ever seen, will lack the courage to stand their ground whenever the government says “boo.” But I digress . . .

For example, according to the court, a DPIA implicates free speech because it “requires a business to express its ideas and analysis about likely harm.” The court argues:

It therefore appears to the Court that NetChoice is likely to succeed in its argument that the DPIA provisions, which require covered businesses to identify and disclose to the government potential risks to minors and to develop a timed plan to mitigate or eliminate the identified risks, regulate the distribution of speech and therefore trigger First Amendment scrutiny.

This reasoning could apply to any requirement that a business to document its policies and procedures or conduct risk analysis or have contracts with vendors. According to Judge Freeman, requirements to provide information about privacy practices is “requiring speech.” Requirements to estimate age “impede the ‘availability and use’ of information and accordingly to regulate speech.” According to Judge Freeman, nearly everything law might require can be recast in terms of requiring speech or affecting speech. For example, under Judge Freeman’s reasoning, data security requirements such as having policies or documenting processes would involve requiring speech. Doing a risk assessment would involve required speech.  Under this reasoning, it’s hard to imagine what wouldn’t be involve speech. Beyond privacy, much other regulation would implicate speech, such as required nutrition labels, product warnings, and mandatory disclosures.  One could argue that requirements to cooperate with regulators for inspections and investigations would involve speech — after all, these require that someone at a company communicate with regulators.

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Yale Law School Discussion of Murky Consent article

 

I’ll be speaking at Yale University on Tuesday, Oct 3 about my upcoming article, Murky Consent: An Approach to the Fictions of Consent in Privacy Law.  You can read the event description and add it to your calendar here.

 

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My Speech at EUROPOL on the Nothing to Hide Argument

On September 19, 2023, I am speaking at the European Union Agency for Law Enforcement Cooperation (EUROPOL) event, Whispers of Contrast (Madrid, Spain). The topic of my talk will be “Nothing to Hide – Nothing to Fear?” and will be based on my book, Nothing to Hide: The False Tradeoff Between Privacy and Security.  You can buy the book on Amazon, or download the complete electronic version for free on SSRN.

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Webinar – Facial Recognition and the Dubious Side of AI Blog

In case you missed my interview with New York Times reporter Kashmir Hill, you can watch the replay here.  We discussed her new book, Your Face Belongs to US: A Secretive Startup’s Quest to End Privacy as We Know It (Sept. 19, 2023).

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Privacy Tech Insights US State Privacy Law


Although a U.S. federal privacy law remains elusive, U.S. states have been busily passing new laws. The laws have many similarities, but there are some notable differences. California and Colorado have issued new regulations, some provisions of which strengthen components of the laws.  I expect other states to join in the party soon.

I will be holding a Webinar on U.S. State Privacy Law Developments tomorrow (Tues, Aug. 29, 2023 at 2 PM ET) with Libbie Canter (Covington) to discuss these laws. Click here to register now for this free webinar!

I have created some related resources and training materials that might be useful:

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