Two Figures

DISCRETION DIFFERENTIAL

On the varying modes of conceiving of privacy (and its violation) in the law

In a 2004 YALE LAW JOURNAL article, comparative legal scholar JAMES Q. WHITMAN explores differing cultural and legal postures toward privacy. Through his comparison, he draws a slim taxonomy: privacy rights are founded on either dignity (throughout Western Europe) or on liberty (in the United States). The distinction—while far from perfectly neat either historically or in the present—raises a number of interesting questions about privacy law that are currently being worked out as scholars and legislators move forward in the creation and implementation of digital governance procedures. From the paper:

“If privacy is a universal human need that gives rise to a fundamental human right, why does it take such disconcertingly diverse forms? This is a hard problem for privacy advocates who want to talk about the values of ‘personhood,’ harder than they typically acknowledge. It is a hard problem because of the way they usually try to make their case: Overwhelmingly, privacy advocates rely on what moral philosophers call ‘intuitionist’ arguments. In their crude form, these sorts of arguments suppose that human beings have a direct, intuitive grasp of right and wrong—an intuitive grasp that can guide us in our ordinary ethical decisionmaking. The typical privacy article rests its case precisely on an appeal to its reader’s intuitions and anxieties about the evils of privacy violations. Imagine invasions of your privacy, the argument runs. Do they not seem like violations of your very personhood?

Continental privacy protections are, at their very core, a form of protection of a right to respect andpersonal dignity. The core continental privacy rights are rights to one’s image, name, and reputation, and what Germans call the right to informational self-determination—the right to control the sorts of information disclosed about oneself. They are all rights to control your public image.

By contrast, America is much more oriented to values of liberty. At its conceptual core, the American right to privacy is the right to freedom of intrusions by the state, especially in one’s own home.”

Link to the paper.

• Forthcoming in the Harvard Journal of Law & Technology, an in-depth review of the significance of the Supreme Court’s June decision in Carpenter v. United States: “Carpenter holds that the police may not collect historical [cellphone location tracking data] from a cellphone provider without a warrant. This is the opinion most privacy law scholars and privacy advocates have been awaiting for decades.” Link.
• An excellent repository of scholarship on the GDPR—the new European data protection law—from the journal International Data Privacy Law. Link.
• Danielle Citron and Daniel Solove’s 2016 paper explores how US courts have dealt with legal standards of harm—anxiety or risk—in cases of personal data breaches. Link. See also Ryan Calo’s 2010 article “The Boundaries of Privacy Harm.” Link.
• Khiara Bridges’ 2017 book The Poverty of Privacy Rights provides a corrective to universalist claims to a right to privacy: “Poor mothers actually do not possess privacy rights. This is the book’s strong claim.” Link to the book page, link to the introductory chapter.

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• A new report out this week from our colleagues at Stanford’s Basic Income Lab and the National League of Cities: “Basic Income in Cities: A Guide to City Experiments and Pilot Projects.” Link.
• Beyond GDP: Charles Jones and Peter Klenow propose a new measure for the economic well-being of people in a country. The measure incorporates data on consumption, leisure, mortality, and inequality to account for differences between general welfare and GDP per capita. Link.
• Studying the logic of insurgent electoral violence: “Insurgents try to depress turnout while avoiding backlash from harming civilians. Counter factual exercises provide potentially actionable for safe-guarding at-risk elections and enhancing electoral legitimacy in emerging democracies.”Link.
• Mark Koyama’s multipart series from 2016 on the economy of Ancient Rome. Link.
• A new article for Issues in Science and Technology examines how high-profile scientific controversies (GMOs, climate change, and vaccines) often serve as limiting proxies for philosophical and political debates. Link.
• Managing the discontent of losers: a new working paper on the material basis of the neoliberal capital-citizen accord, which includes “the ability of households to accumulate debt in order to limit the growth of consumption inequality in the face of burgeoning income inequality.” Link. ht Barry
• On the wages and value of nonemployment. Link.
• The Leap Forward project—partially supported by the Haas Institute for a fair and inclusive society and our colleagues at the Economic Security Project—recently published an essay on “A Half Built Connected Economy” in the San Francisco Bay Area. It presents a “framework of policy ideas big enough to tackle extreme income and wealth inequality.” Link.
• Three new reports on UBI: UC Berkeley’s Hilary Hoynes and Jesse Rothstein examine the potential role of UBI in countries with well-developed (if incomplete) safety nets. Link. Researchers at MIT and UC San Diego probe the efficacy of a universal versus a targeted basic income. Link. And, finally, a review of possible theoretical justifications for a universal basic income proposal.Link.
• “Our research examines the role of factor endowments (the amount of land, labor, capital, and entrepreneurship that a locality possesses) in determining the location of technology adoption in English textile industry and its persistence since the Middle Ages. In line with recent research on economic growth, which emphasizes the role of factor endowments on long run economic development, we claim that the geographical and institutional environment determined the location of watermill technology adoption.” Link.

Each week we highlight research from a graduate student, postdoc, or early-career professor. Send us recommendations: editorial@jainfamilyinstitute.org