[Commentary] The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case?
There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.
[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]
The world’s 3.6 billion internet users depend on computer algorithms to sort through the vast ocean of information available online. Algorithms follow a set of programmed instructions to transform data into a form that humans can understand, deciding everything from the content of social media feeds to the creditworthiness of borrowers. Though algorithms handle digital data, their decisions also have consequences in the analog world.
In May, a homeowner in Illinois filed a lawsuit against the real estate data website Zillow, alleging that their home value estimator tool significantly undervalued her home and impeded its sale. To protect European citizens when their data is used in “automated decisionmaking”, the European Union enacted new data protection rules last year. This kind of scrutiny may increase with a greater reliance on algorithms to make sense of online data.
Public Knowledge joined Consumer Federation of America, Center For Digital Democracy, Consumer Action, Consumer Federation of California, and Privacy Rights Clearinghouse in a letter urging Federal Trade Commission Acting Chairman Maureen Ohlhausen to protect consumer privacy.
Acting Chairman Ohlhausen has made numerous statements indicating she is eager to demonstrate the ability of the FTC to protect consumer privacy in the telecommunications sector. The 9th Circuit’s recently vacated decision allows the FTC to go forward on enforcement actions concerning the non-common carrier activities of communications providers. Addressing our complaint provides the FTC an immediate opportunity to clarify whether the FTC does or does not have the authority to protect our digital privacy. In a recent Harvard-Harris poll, 9 in 10 Americans think they have less privacy today than they did 10 years ago, and 90% agree that companies have more access to their personal information than they are comfortable with. Americans need to know what protections they can count on, and they need to know now. We encourage FTC Acting Chairman Ohlhausen to let Americans know where their online privacy protections stand by responding to our complaint.
Consumers aren’t comfortable with their data being collected by smart TVs, according to a survey conducted by Videa, Cox Media’s automated ad platform. The survey found that 48 percent of consumers said they were somewhat, mostly or completely uncomfortable with advertisers collecting Smart TV data. Only 39 percent said they are somewhat, mostly or completely comfortable with their data being collected by advertisers. The answer most given, at 21 percent of respondents, was that they were completely uncomfortable with the data collection.
[Commentary] On May 18, House Communications Subcommittee Chairman Marsha Blackburn (R-TN) introduced the BROWSER Act (H.R. 2520), legislation that would apply privacy regulations to both Internet service providers (ISPs) and edge providers (e.g., Netflix and Facebook). Most notably, the bill would require companies to obtain users' permission before sharing their sensitive information, including web-browsing history, with advertisers. The legislation is surprising, as it comes just weeks after Blackburn led the vote to repeal the Federal Communications Commission’s privacy protections for broadband subscribers. Below we unpack the BROWSER Act and take a look at what to expect in the weeks ahead.
Building on the success of its two previous PrivacyCon events, the Federal Trade Commission is announcing a call for presentations for its third PrivacyCon, which will take place on February 28, 2018.
The call for presentations seeks research and input on a wide range of issues and questions to build on previously presented research and promote discussion, including:
What are the greatest threats to consumer privacy today? What are the costs of mitigating these threats? How are the threats evolving? How does the evolving nature of the threats impact consumer welfare and the costs of mitigation?
How can companies weigh the costs and benefits of security-by-design techniques and privacy-protective technologies and behaviors? How can companies weigh the costs and benefits of individual tools or practices?
How can companies assess consumers’ privacy preferences?
Are there market failures (e.g. information asymmetries, externalities) in the area of privacy and data security? If so, what tools and strategies can businesses or consumers use to overcome or mitigate those failures? How can policymakers address those failures?
Submissions for PrivacyCon must be made by November 17, 2017.
House Communications Subcommittee Chairman Marsha Blackburn (R-TN) is asking Democratic Reps to cosponsor her new internet privacy bill, intended to replace Federal Communications Commission privacy protections that Republicans killed earlier in 2017. Chairman Blackburn’s office sent an e-mail June 6 to all House Democrats asking them to sign on to the new bill, and arguing that it would strengthen existing privacy protections. “Rep Blackburn is a former co-chair of the bi-partisan Congressional Privacy Working group,” the e-mail reads. “Moreover, she has not been accepting additional Republican co-sponsors while in the midst of taking stakeholder meetings and beginning outreach to Democrats.”
Chairman Blackburn’s new bill, called the Browser Act, would subject service providers and web services alike to the same rules, requiring both to get customers’ explicit consent before handing over “sensitive” information, such as financial and health data, browsing history, geo-location tracking, to third parties.
[Commentary] On its face, the BROWSER Act seems like pro-consumer privacy legislation. But it’s actually an awful deal for Americans who’ve come to depend on free online content and services.
The BROWSER Act would disallow interest-based ads by default. In doing so, the act would erase $340 billion in advertising revenue from American websites over the next five years. That’s because the Act requires users to opt-in to interest-based advertising and studies have shown that such an opt-in regime reduces online ads’ effectiveness by 65 percent. Some might initially celebrate this change. But celebration will change to mourning when they realize the price we’ll be paying when websites lose all this ad revenue.
[Carl Szabo is senior policy counsel for NetChoice, a trade association of eCommerce businesses including AOL, Facebook, and 21st Century Fox.]
Lawmakers could be looking at a new fight over internet privacy, as they return to Washington after their weeklong Memorial Day recess. In the House, Communications Subcommittee Chairman Marsha Blackburn (R-TN) is moving to build support for an internet privacy bill she introduced in May. The bill comes after Chairman Blackburn and Republicans spearheaded efforts to kill the Federal Communications Commission's own privacy rules for broadband providers. But so far her bill is winning few supporters, with most stakeholders in the internet privacy fight being slow to take a stance.
The Senate Commerce Committee is holding a hearing on David Redl's nomination to be Assistant Secretary for Communications and Information at the Department of Commerce on June 8. If confirmed, Redl will be in charge of the National Telecommunications and Information Administration (NTIA), and serve as President Trump's top telecom adviser.
[Commentary] Like the network neutrality debate, the privacy debate has been hijacked by noise rather than analysis, filling the zeitgeist with several misconceptions about the state of American privacy law. No doubt this misinformation campaign contributed to House Communications Subcommittee Chairman Marsha Blackburn’s (R-TN) decision to introduce this bill. But the act ultimately sacrifices the internet’s primary revenue engine in an attempt to solve a problem that the relevant agencies are well on their way to resolving on their own.
If Congress wanted to make a real contribution, it could repeal the Federal Trade Commission Act’s outdated common carrier exemption, which helped trigger this debate. While well-intentioned, the BROWSER Act accomplishes little good while threatening significant harm to the internet ecosystem.
[Daniel Lyons is an associate professor at Boston College Law School]