Andrea M. Matwyshyn, Talking Data
Comment by: Andrew Selbst
Workshop draft abstract:
In the wake of Sorrell v. IMS Health, open questions remain regarding the limitations on privacy regulation imposed by the First Amendment. A conceptual classification problem that is simultaneously also visible in other bodies of law has crept into the intersection of privacy and the First Amendment: confusion over when (or whether) a data aggregator’s code (and its attached information) is a type of expressive, socially-embedded act of communication or a type of free-standing communicative yet regulable “product.” This article argues that although the statute at issue in Sorrell failed First Amendment scrutiny, privacy regulation which restricts onward transfer of databases of consumer information – even transfers of anonymized data – if carefully crafted, can pass First Amendment scrutiny. Through blending doctrinal First Amendment principles with the fundamental tenets of human subjects research protection imposed by Congress and the Department of Health and Human Services, this article explains the doctrinal limits of the First Amendment on future consumer privacy laws and offers an example of a possible First Amendment-sensitive approach to protecting consumer privacy in commercial databases.
Helen Nissenbaum & Andrew Selbst, Contextual Expectations of Privacy
Comment by: James Grimmelmann
Workshop draft abstract:
The last decade of privacy scholarship is replete with theories of privacy that reject absolute binaries such as secret/not secret or inside/outside, instead favoring approaches that take context into account to varying degrees. Fourth Amendment doctrine has not caught up with theory, however, and courts continue to employ discredited binaries to justify often contradictory conclusions. At the same time, while some of the cases reveal the influence of contextual thinking, courts rarely have included an explicit commitment to context in their opinions. We believe that such a commitment would improve both the internal consistency and individual case outcomes of the Fourth Amendment.
The theory of contextual integrity, which characterizes a right to privacy as the preservation of expected information flows within a given context, offers a framework for injecting context into the conversation. Grounded, as it is, in context-based normative expectations, the theory offers a useful interpretive framework for Fourth Amendment search doctrine. This paper seeks to reexamine the meaning of a “reasonable expectation of privacy” under the theory of contextual integrity, and in doing so accomplish three goals: 1) create a picture of Fourth Amendment doctrine if the Katz test had always been interpreted this way, 2) demonstrate that contextual integrity can draw connections between seemingly disjointed doctrines within the Fourth Amendment, and 3) illustrate the mechanism of applying contextual integrity to a Fourth Amendment search case, with the intent of helping both theorists and practitioners in future cases, particularly those involving technology.