The Harvard Law Review is hosting a Symposium this November on the topic of Privacy & Technology. The Law Review is currently accepting abstracts for papers to be considered for publication in the Symposium Issue. To be considered for publication, please send an abstract of no more than 750 words to HLRsymposium2012@gmail.com by June 15. Space in the issue is limited and papers will be selected on a rolling basis, so early submission is recommended. We strongly prefer abstracts for shorter essays that can be executed in fewer than 12,500 words (about 25 law review pages).
The following proposal gives a taste of what kinds of inquiries we are interested in. We are most interested in papers that challenge old concepts and categories and propose new ones that could potentially drive the development of privacy law in the following decades.
Today, we are witnessing astounding new technologies that efficiently gather, use, and analyze massive amounts of data. These changes have created a set of profound challenges for regulating privacy, as existing regulatory approaches are straining to keep up with rapid technological advances. The regulatory ideas and frameworks over the past few decades have failed to adequately respond to the constantly shifting technological landscape. Policymakers—among many different stakeholders—recognize that a new direction is needed for privacy law, but there remains much to be resolved about what direction it should head. Moreover, deep divides have emerged in how different societies regulate privacy despite the increased need for governments and businesses to share information across borders. These changes present challenges for the core conceptual underpinnings of privacy itself. We thus stand at a crossroads about how to regulate privacy and even how to think about privacy. The road forward will require a deep re-imagining of privacy in both theory and practice.
Theory: On the level of theory, the most crucial demand is to find out what interests are really at stake. What do we as a society really want? (Relatedly, should we even concern ourselves with the privacy regimes of other nations?) The relationship between the robustness of personalized services and their practically necessary encroachment on traditional zones of privacy needs to be addressed. Furthermore, what is the relationship between social and political culture and the architectural design of privacy protection? How do different conceptions of privacy bear on the capacity of participatory democracy? On liberalism generally? On the rule of law? In order to address the practical problems of protecting a particular set of privacy rights, we should be clear on what values we are trying to promote with privacy.
Executive Surveillance: Individuals and policy makers continually grapple with expanding executive encroachment on privacy brought about by new technologies. In the three separate opinions in Jones, the Supreme Court bantered about the constitutional concept of privacy in the realm of government surveillance. Although the opinion of the Court decided the case on narrow grounds, the concurrences suggest at least five justices might entertain a new, more expansive, and more nuanced conception of what constitutes a reasonable expectation of privacy. Should the Court turn in this new direction and overhaul Fourth Amendment jurisprudence? In the modern information society, a wealth of data can now be obtained about the minutia of a person’s life. To what extent should the government have access to this data when maintained by private-sector entities? What limits should the government have in how it may use data after being collected? How should the fusion centers be regulated? How long should data be kept? The laws that regulate electronic surveillance and data use by the government are practically ancient, most being passed in the 1970s and 1980s. Hardly anyone can disagree that the law needs to be updated. But what, exactly, should the law provide? And in what direction will the Court take the Fourth Amendment? Is a more nuanced and contextual approach to the Fourth Amendment desirable or workable?
Comparative Perspectives: While American privacy law has varied substantially in different industries, and has often relied extensively on a self-regulatory approach, the Europeans have advanced broad and strong constitutional and statutory privacy rights through the European Court of Human Rights and the European Commission. This year, the EC unveiled a new regulation that would expand on the 1995 Data Protection Directive, and will include within it new privacy rights, including the controversial “right to be forgotten.” What can American privacy law learn from these developments in Europe? Is it possible to translate some of the European privacy rights into American law? What can the EU learn from American privacy law? More practically, the significant differences between EU and American privacy approaches impede information flow and create immense challenges in an increasingly global economy. Can these differences be bridged?