IS DATA SPEECH?
By Bambauer, Jane | |
Proquest LLC |
Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what "speech" is.
This Article makes two overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government's motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with the creation of knowledge, that regulation should draw First Amendment scrutiny.
In combination, these claims show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to privacy debates, data is speech.
[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought . . . .
-Justice
INTRODUCTION
When does factual information become speech? The appealing, simple answers reside at the extremes.
Perhaps information is always speech. After all, information communicates, educates, and persuades. A single plain fact can do more to change minds and alter debates than a thousand opinions. But this rule goes too far. There are many times that an event will leave a mark that has the potential to retell its story. A car may careen into a barrier and leave a streak of paint. Long after the car is towed, the streak states, in a way, when and where the crash occurred, how fast the car was traveling during impact, and what color the car was. The streak of paint can be received and interpreted by a human to create knowledge.2 But if a city repainted the barrier, we would not interpret this as a decision related to speech. Likewise a crack in the sidewalk might tell the story of a frost, but a municipal ordinance requiring property owners to maintain their sidewalks would not be an act of censorship. Every cell contains DNA, the body's ultimate archive of information, and yet the proper disposal of used syringes does not, and should not, implicate First Amendment scrutiny.
Since data is expressed in alphanumeric symbols, it certainly looks a lot more like traditional speech than a crack in the sidewalk.3 However, conceptually it is sometimes not so far off. When data is the byproduct of other events and services-transactions between a home computer and a website's server, or between a cell phone and a cell tower-these records are no different from other unanticipated marks created by the bustle of life. They have no intended author, and no intended audience. They are mere footprints.
If information isn't always speech, then perhaps it is never speech. After all, the quintessential First Amendment litigant expresses some unpopular idea or opinion. Maybe the domain of the First Amendment is opinion, and other products of human subjectivity. This rule runs into unsalvageable problems even more quickly than the last. Some of the most important modern speech cases concerned the unadorned reporting of raw information.
A distinction can be made between statements of fact that are observed and written by a human and those that are collected mechanically, and it might be tempting to draw the First Amendment line between the two. But the distinc- tion is untenable. Suppose
The two absolute positions, that data always is speech or never is, simply fail to describe an understanding of the First Amendment that society could tolerate. If neither of the poles can be correct, the truth is somewhere in the messy middle.
Delineating exactly when information receives speech protection, and why, would not have been worth the energy before the era of mass computing, but the building momentum of data analytics and the competing interests of personal privacy have turned this once-arcane question into a matter of great significance and urgency.
Privacy advocates naturally turn to lawmakers to combat the effects of increased data collection and cheap data storage. They are not alone. As smart phones and other recording devices become ubiquitous, corporations have come to the well, too, pressing legislators to create or strengthen laws that protect their interests in secrecy. Of course, these political forces have little overlap in support. Consumer groups press for privacy laws while corporations lobby for trade secret laws and various industry-specific protections (for example, so-called "ag-gag" laws for animal agriculture companies8 or criminal statutes outlawing card-counting devices for casinos9), but the motivation for these disparate efforts is the same: to preserve the information status quo.
These efforts clash with the First Amendment.
This Article contends that the freedom of speech carries an implicit right to create knowledge. When the government deliberately interferes with an individual's effort to learn something new, that suppression of disfavored knowledge is presumptively illegitimate and must withstand judicial scrutiny.
The application of this rule to information law is straightforward. Data is not automatically speech in every context; as the opening hypotheticals illustrate, data can be generated without any expectation to be reviewed and interpreted. But asking whether all data should be treated as speech misses the point: any time the state regulates information precisely because it informs people, the regulation rouses the First Amendment.
The right to create knowledge reinforces American commitments to autonomy and intellectual curiosity. It at once transcends and supports "speaker" and "listener" rights by protecting observation and thought-the very things that make speaking and listening so valuable. It deserves to be celebrated. Nevertheless, I will proceed with caution because the implications of the right are quite far reaching and profound.
For one thing, as I describe in Part II, the right to create knowledge explodes the classic distinction between information and information gathering, which has long been used by courts to define a boundary between protected speech and unprotected conduct. Mechanically captured recordings of conversations and images are often treated as information-gathering conduct, and have avoided First Amendment scrutiny on that basis. A large and growing body of wiretap statutes and information security laws rely heavily on the distinction. But a rigorous review of the cases distinguishing information from information gathering reveals that the reasoning is flawed. The cases treat a journalist who observes an event differently depending on whether she records the incident by taking meticulous notes using pad and paper (protected) or by using the video function on her iPhone (unprotected). The line arbitrarily favors old technologies (memory, pens, even word processors) over new ones.
Recent, better-reasoned case law has already begun to correct the inconsistency. 10 If the dissemination of mechanical recordings receives First Amendment protection (which it does),11 then the creation of those same recordings must have First Amendment significance, too.
Many readers will feel uneasy about the breadth of a First Amendment that interferes with the modern attempts to limit the collection of personal data. The proposals in this Article can be used to challenge the constitutionality of many popular privacy statutes (for example, the Health Insurance Portability and Accountability Act of 199612). They throw into doubt the
Anticipating the disruption that constitutional scrutiny would cause, privacy scholars have built a consensus conveniently placing data outside the scope of the First Amendment's protection.
These scholars write in stubborn service to the privacy and consumer regulations that seem most sensible to them.17 Certainly there are many reasons to believe that privacy regulations make good public policy. But optimal policies are not immune from First Amendment constraints.18 More importantly, these scholars do not provide any coherent vision of the First Amendment. They do not successfully reconcile their arguments with longstanding social commitments to the free flow of information.
Meanwhile, First Amendment scholars have largely ignored how new technologies challenge the definitional questions of speech.19
This Article offers such a framework in Part III by combining two important insights, each of which has a strong legacy in case law and legal scholarship. First, the Article highlights and strengthens the strands of First Amendment theory that protect the creation of knowledge. Expanded knowledge is an end goal of American speech rights, and accurate information, along with other, more subjective expressions, provides the fuel. Second, if a court is uncertain whether a regulation targets "speech," it should analyze the regulation purposively rather than simply considering the regulation in the abstract. A motive analysis can quickly and concretely identify regulations that interfere with free expression.21 Together, these principles suggest that state action will trigger the First Amendment any time it purposefully interferes with the creation of knowledge.
Thus, for all practical purposes, and in every context relevant to the current debates in information law, data is speech. Privacy regulations are rarely incidental burdens to knowledge. Instead, they are deliberately designed to disrupt knowledge creation.22 Ag-gag laws and trade secret protections, too, operate on disfavored forms of increased knowledge.23 These disruptions in knowledge creation might sometimes, or even frequently, be justified in order to protect compelling societal interests-for instance, living without constant surveillance. 24 Although the First Amendment creates a barrier to the enforcement of new and existing information laws, that barrier is not insurmountable. It simply requires, as it should, a lively inquiry into whether the harms caused by the collection of information are probable enough, and serious enough, to outweigh the right to learn things.25
The Article proceeds in four Parts. Part I defines "data" and "speech" so that the parameters of this investigation are clear at the outset. It also explores whether data is expressive enough to warrant First Amendment protection. Part II evaluates the sometimes contradictory case law that has analyzed whether the First Amendment applies to regulations of data and information. Part III presents the culmination of the Article's investigation: data should receive speech protection any time it is regulated as information. This conclusion fits most of the cogent precedents, and it is the most defensible on normative grounds. Part IV lays out the implications of the speech rule proposed by this Article, and responds to some obvious objections. In particular, this Part responds to fears that the application of the First Amendment will lead to a parade of horribles when existing privacy laws are challenged.
This will not be a particularly smooth journey. In 1956,
I. WHAT IS "DATA," AND WHAT IS "SPEECH"?
This Part addresses two important definitional questions. Since the terms "data" and "speech" invite multiple meanings, defining them with precision here will focus and constrain the rest of the discussion.
When this Article uses the term "data," it means a fixed record of a fact. I am about to delve more deeply into this concept, so if this simple definition is satisfactory, consider moving on to the next Subpart defining "speech."
Semantic explanations of the word "data" require working backwards from the end goal. Data is a subset of information, and information is special because humans can transform it into new factual knowledge-a new understanding about something that has occurred. We do this by receiving and interpreting the patterns in the information. Information will not always provoke a new understanding about the state of the world from a human (just as a teacher cannot always lead a student to understanding), but it might, and the potential is key.
This Article will use "information" to mean any objective representation of something that has occurred-any representation of a fact.27 It need not be fixed. A man yelling "timber" has momentarily created information that a tree is falling, though it will soon dissolve into memory and the air. It also need not be man-made, as a fossil can represent facts as clearly as any drawing or description of the original specimen.
This is an expansive definition, but it is constrained, importantly, by factual representation. Utterances sometimes convey facts ("Timber!"), but not always. Thus, when a person yells "Republicans suck" or "beauty is truth, truth beauty," he is not representing a fact and, thus, is not uttering information about Republicans or beauty. These are opinions, ideas, hypotheses, and artistic expressions. 28 Information reports only something that has occurred.
The scope of this Article is narrower still. I will investigate the constitutional treatment of data-information that somebody has deliberately caused to be captured and recorded into a fixed, man-made format. Though I will spend much of my energy thinking about electronic data that has recorded some type of event-the time and details of a file transfer, or the time and location of a cell tower ping-data does not have to be electronic. Hand-collected tallies, cash register tapes, and photographic portraits are data. Even parts of
This Article confines its investigation to data for two reasons. First, manmade data has more similarities to traditional speaker-listener arrangements than other types of information (though there are some limits to the similarities), so it might have a more promising claim to the First Amendment's protections. Second, unlike other forms of information, the quantity of data has exploded in the digital age.29 The sudden change in the status quo makes data a likely candidate for policy debates and regulation. In other words, this is the information that governments worry about.
This Article will also refer to "records" (as in "business records" or "medical records"). A record is data created with the specific purpose of preserving information. Thus, it can be distinguished from "functional data," such as server data, which is produced in order to carry out a function or service.30 Functional data is data too; it came to be because browser programs or other software were deliberately coded to create the data. However, it is conceptually distinct from a record because it was not necessarily created for the purpose of preserving information. Machine-to-machine communications were originally produced to carry out the steps necessary for web browsing. Though the data turned out to be very valuable for its information content, it was not necessarily created with that purpose in mind. So, records and functional data are distinct subsets of data. Some scholars, myself included, have homed in on the distinction between functional data and other types of records as a useful boundary for law.31 But as this Article explains, First Amendment doctrine should not capitalize on this distinction.
Finally, for the purposes of this Article, data will be presumed to be accurate. Data that turns out to be inaccurate, either through deliberate attempts at deceit or unintentional error, presents some interesting First Amendment and legal liability questions, but the nature of those questions is very different. In the great conflict between privacy regulation and information flow, accuracy is the source of both harm and value.
B. Speech
Equally important is the definition of "speech." The goal of this Article is to understand whether regulations on the collection or transfer of data implicate the First Amendment, thus requiring the government to justify and narrowly tailor the regulations. It is not particularly important whether First Amendment interests are raised under the banner of "speaker rights," "listener rights," or under some other concept, such as the semi-developed "right to receive information." 32 Ultimately the Article seeks to understand whether legal restraints on the creation or dissemination of data draw First Amendment scrutiny on any basis.
Because some forms of data are already very familiar forms of expression- maps, almanacs, photographs, and the like-it is quite natural to refer to them as "speech." So this Article will use the term "speech" as convenient shorthand for anything protected by the First Amendment (under the Free Speech Clause) on any basis. For our purposes, if data is constitutionally protected at all, it is "speech."
Another caveat: this Article will assume that anything found within the scope of speech will receive some accompanying judicial scrutiny so long as it does not fall within one of the exceptional categories of "unprotected" speech-such as fighting words, obscenity, fraud, and so forth.33 But it would be careless to proceed with this assumption without acknowledging that it is a subject of scholarly debate.
Though courts resolving speech issues routinely assert that the First Amendment applies to speech except for the exceptional categories of "unprotected" speech,
Granted, the
However, many of the examples Schauer cites as evidence that First Amendment protection is exceptional, even for traditional forms of expression like utterances, fail to support his theory.38 For example, Schauer makes much of the fact that antitrust claims may be brought against firms based on the speech used to reach price-fixing agreements,39 but these laws target and prohibit the business agreement to collude on pricing. Enforcement uses the actual words uttered by the firms' directors or agents only as evidence of an agree- ment-a contract-to do something that violates public policy (in this case, to sell goods at noncompetitive prices).40
Contrary to Schauer's thesis, intentional regulations of speech as speech have, as a default, triggered First Amendment scrutiny. Recently, the
One could argue that the categories of "unprotected" speech might better be understood as speech for which a strict scrutiny calculus that has already, tacitly, been performed.
Finally, this Article addresses only the issue of First Amendment coverage. It does not attempt to determine what level of scrutiny ought to apply to the regulation of data.48 The first-order analysis of whether the First Amendment applies at all is complex enough to merit an article of its own, and so I direct my focus there.49
No account of the First Amendment treatment of data, whether normative or descriptive, can be complete without some reflection on the qualities of data- qualities that make it at once similar to and very different from other more familiar forms of expression. So before moving on to the discussion about what the First Amendment does (Part II) and what it should do (Part III), this Part will conclude with some preliminary observations about the nature of data.
Data communicates. It tells a narrative just as effectively as prose, imagery, and music to those with the training to interpret it. Its style is dry, but this does not interfere with its ability to light up the mind. A database can be interpreted directly by a person with the help of a codebook, and it can also be translated into other more familiar forms of expression like maps, charts, graphs, and descriptive sentences. Lest there be any doubt about data's intimate connection to other forms of expression, one may recall that the very first form of writing was data: the accounting records of traders in ancient Mesopotamia.50 Data provided the building blocks of the rest of written language.
Modern data collection practices raise uniquely difficult constitutional linedrawing problems. When data is created to inform a broad public audience, or even to inform a specific audience, its conceptual similarities to pamphlets and other types of traditional speech are obvious. But when it is created without the intent to inform anybody of anything in particular, the parallels to traditional speech begin to break down.
To understand whether this type of data can or should receive the protection of the First Amendment, I will next explore how real conflicts have been resolved by the courts.
II. DATA IN FIRST AMENDMENT PRECEDENT
The descriptive analysis of the First Amendment case law as it relates to data runs into a contradiction. When data already exists and is transmitted from one person or entity to another, the case law strongly supports the conclusion that raw facts are protected by the First Amendment. These cases are described in Subpart A.
One might assume that the creation of data tends to receive protection as well, since the collection of data is a necessary precursor to having and sharing it. Indeed, some cases suggest this is so, but at present the authorities are in conflict. A long strand of privacy case law confidently concludes that data creation is conduct insufficiently expressive to warrant First Amendment protection. These cases are described in Subpart B.
Subpart C discusses some recent cases challenging and rejecting the assumption that mechanical information gathering is nonexpressive conduct.
To prepare for the normative discussion in Part III, Subpart C will also give some attention to the logical strengths and weaknesses of each of the diverging trends in the case law. The cases finding that mechanical information gathering does not receive speech protections reach their holdings after making assumptions about technologies that have not aged well. In contrast, the cases recognizing First Amendment protection of data gathering are more consistent with free speech values and are better equipped to stand the test of time.
A. Existing Data
A few years ago, privacy advocates and data aggregators watched anxiously as the
Why couldn't
This Subpart catalogs the cases in three areas of law where the constitutional protection of data sharing has naturally had reason to surface: privacy, advertising, and copyright. The results across each of these disciplines consistently protect the free communication of data.
1. Gleanings from privacy law
The Court wrote on a fairly clean slate when it decided
In
The Tenth Circuit case of
The court found that section 222 infringed on the telecommunications service provider's First Amendment rights.64 But it did not do so by concluding that the customer data itself was speech. Instead, the court located the First Amendment interest in the communications that U.S. West intended to make to its customers with the aid of the data. The First Amendment attached to the advertising U.S. West wished to tailor to their customers' usage habits. So technically, the court never identified the data as a source of First Amendment rights. Instead, the court focused its analysis on the indirect burden imposed on U.S. West's traditional commercial speech.65
But if the ultimate question is whether data receives First Amendment protection, the distinction is inconsequential. If section 222 infringed on U.S. West's right to advertise to its customers, it did so only indirectly through its effect on data. The fact that the court treated the indirect burden as a First Amendment problem reveals that data has a sufficiently close relationship to free expression to merit derivative protection.
Indirect burdens on speech provoke First Amendment scrutiny only when the intended target of the regulation is so closely linked to speech, so indispensible to First Amendment rights, that it is an impediment to speech itself. A tax on ink, for example, would draw First Amendment scrutiny.66 A tax on metal wouldn't, even though metal is used to make printing presses. And speed limits wouldn't, even though newspaper delivery could be speedier if the law did not apply.67 The
Alternatively, the U.S. West court may have believed that a privacy regulation like section 222 could never be an incidental burden to speech because the purposes underlying the regulation are aimed at achieving some desired effect on future communications.68 Either way, the court recognized a constitutionally significant connection between readily accessible facts and speech.
2. Gleanings from commercial speech regulations
Prescription drug prices and beer ingredients are truly dull facts, but their communication from a business to its customers is protected speech.69
The
Furthermore, the Court not only recognized the public's interest in accessing information, but it also found that the right to receive information exists in the abstract, even if the particular communications that happen to be made using the information are not especially illuminating. Because information can be edifying, the First Amendment will protect that potential regardless of how the information is ultimately used. The Court used a hypothetical pharmacist to illustrate the expansive protection: "Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not."75
3. Gleanings from copyright law
Facts cannot be copyrighted.77 This is so first and foremost because the Intellectual Property Clause of the U.S. Constitution allows
It is conceivable that a raw fact could be outside the scope of the Intellectual Property Clause and also unprotected by the First Amendment, but it would be odd. If this were the case, the government would be powerless to grant one person exclusive control of a fact, yet it would have the power to deny everybody access to and use of it.
Instead, the treatment of facts under copyright law promotes an interpretation of the First Amendment that protects data. In Feist, when the
More recently, a lawsuit brought under the Digital Millennium Copyright Act (DMCA) happened to present the Second Circuit with the issue of whether computer code is speech. The DMCA prohibits the distribution of technologies that can be used to circumvent the encryption used to limit access to copyrighted files.82
This outcome seems bizarre at first blush. The difference between sharing code for informational purposes and for conduct purposes is a matter of mental state alone. As a practical matter, this standard will be very difficult to apply. But, as a theoretical matter, it is eminently sensible. When a government regulates bombs, it constrains what a person can have and do. When a government regulates the dissemination of instructions for making a bomb, it constrains what a person can know.
The protection of potentially useful knowledge thematically connects most of the cases described above, in which courts grappled with the First Amendment's application to existing data. Though none of them define speech to include a right to uninhibited curiosity and knowledge creation, neither do they worry unduly about whether transmission of raw information is expressive enough to draw parallels to other, more traditional forms of speech. The holdings have begun to create a mosaic illustrating that the right to speech requires, and assumes, a right to learn new things. Thus, the cases addressing the dissemination of data align well with the thinker-centered First Amendment promoted in this Article.
However, the next set of cases, addressing the creation of new data, is in obvious tension with the right to create knowledge.
B. Data Creation as Nonexpressive Conduct
In 1963,
However, the court found that the First Amendment did not extend to the reporters' use of mechanical recording devices. It reasoned that, while the magazine had a First Amendment right in the information it observed (and, thus, a right to report it in traditional news media), the First Amendment does not immunize information-gathering conduct, which can be regulated by the state like any other conduct. "The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means . . . ."92 In the end, the acts of mechanically recording and photographing
Distinguishing speech from conduct is the First Amendment's Sisyphean task. There is no set of properties that can reliably identify which human activities are expressive enough to be speech and which are not.94 Surely information- gathering practices can fall squarely on the conduct side of the speech/ conduct divide. If the reporters had never been invited into
The harm the Dietemann court sought to avoid had nothing to do with conduct. The electronic devices did not harm
Given that the cases summarized in the last Subpart demonstrate that already- existing data transmitted between two people is speech, the Dietemann rule is anomalous: data is speech, but the creation of it is not. An equivalent rule for other forms of speech would immediately draw suspicion: Selling books is protected speech; could printing them possibly be regulable conduct? Music is speech, but could it be that recording and producing an album is conduct?99
On the other hand, perhaps the Dietemann court simply recognized that data has a unique place in the First Amendment sphere because of its potential to convert everything that has ever happened into protected speech, with little distortion. Mechanical recordings may have seemed out of range for the rights traditionally associated with speech. Moreover, the interests of
Putting aside for a moment the wisdom of the Dietemann rule differentiating information from information gathering, lawmakers have certainly depended on it. Many states have all-party-consent wiretap statutes, which criminalize the recording of conversations unless each and every party to the conversation has given consent.101 Retailers in
First Amendment rules on the creation of data can be explored through the courts' treatment of documentary photographs, since they are a familiar subset of data. Digital cameras and Adobe Photoshop have taught us to understand photographs as data-as nothing more than a grid of color pixels.106 Just like other forms of data, photographs are sometimes created for one purpose even though their long-term value turns out to be completely unrelated. Other times, photographs are taken without any particular audience or purpose in mind except to satisfy the curiosity of the photographer. Still other images wind up having tremendous interest from a large audience even though they were taken without any human looking through the lens, such as the 2012
Consistent with Dietemann, some courts have justified treating photography as nonexpressive conduct because it can be done without an audience in mind. Security cameras create images without the involvement of anybody resembling an author. Arguably, the First Amendment should require, at the very least, somebody who can be identified as a speaker, and somebody else who could be an intended audience. As one court put it: "To achieve First Amendment protection, a plaintiffmust show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed."108
Courts have used tests like this one to find that photographers have no First Amendment right to take photographs or videos in public places. In Porat v. Lincoln Towers Community Ass'n, a man who was ticketed for photographing a public courtyard lost his claim attempting to vindicate his First Amendment rights.109 He lost because he had described himself as a "photo hobbyist," a phrase that unexpectedly doomed his case, because, according to the district court, "[h]e effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a 'photo hobbyist,' and alleging that the photographs were only intended for 'aesthetic and recreational' purposes."110
In contrast, in Pomykacz v. Borough of West Wildwood, a woman who followed around the town's mayor photographing him, and whose conduct may have satisfied the actus reus elements of criminal harassment, persuaded the court that she had a First Amendment interest in her photographs because they were part of her political activism and could be used to corroborate her theories that the mayor engaged in nepotism (if, indeed, these theories were borne out).111
These cases certainly crafta clear enough rule, and they just as certainly train future photographers about what to say during a deposition (e.g., claim to be an activist, never a hobbyist); but should the First Amendment shield only speakers who have audiences from government interference?
Superficially, these cases look like they are mandated by the
Taken to its logical end, a free speech rule requiring an audience would fail to protect diaries. This result denies the value of private thought and intellectual growth that scholars and jurists have traditionally endorsed.114
In any event, even if protected speech requires a speaker and an audience, photography bans ought to attract scrutiny by their nature. The very purpose of a photography ban is to prevent a wider audience from seeing the scene. With the exception of bans on flash photography, which are often designed to prevent the deleterious effects of light on sensitive objects, photo bans are designed to cut down on communicative potential.115
In time, the rule that mechanically capturing information is nonexpressive conduct will prove to be unworkable. All-party-consent wiretap statutes have already begun to fall apart under the weight of increased judicial scrutiny. These cases and others like it are discussed next.
C. Data Creation as Expressive Conduct
Over the last fifteen years, several state police departments, exercising exceedingly poor judgment, have chosen to arrest citizens who recorded the conduct of on-duty police officers.116 Some (though not all) of the courts dismissed the charges based on a First Amendment right to record. However, with one exception, the right was crafted narrowly, as a right to record public officials performing their public duties.117 The
But last year, in
The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. . . .
. . . .
. . . . [T]here is no fixed First Amendment line between the act of creating speech and the speech itself . . . .
This observation holds true when the expressive medium is mechanical rather than manual. . . .
. . . .
Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast- whether to the general public or to a single family member or friend-and thus burdens First Amendment rights.121
Other courts have inched toward the same position by advancing a right to access information. In S.H.A.R.K. v. Metro Parks Serving Summit County, an animal rights group brought a civil rights claim against a county for disposing of its video footage of a deer culling in a state park.122 The activists had set up video cameras in trees to record during hours that the park was closed to visitors. The Sixth Circuit found that the animal rights activists had a First Amendment interest in recording the deer culling, and more generally in "access to information."123 However, the right was differentiated from, and given significantly less scrutiny than, the right to expression, and the animal rights activists ultimately lost their case.124
A right to access information (or, more precisely, a right to be free from government restraint on access to information) is at odds with Dietemann and other cases that presume the First Amendment imposes absolutely no constraint on the tort of intrusion upon seclusion. But the S.H.A.R.K. approach seems necessary. If access to knowledge were not a constitutionally protected right, the intrusion tort could be boundless. At the extreme, the government could prohibit a person from recording anything at all without conflicting with the First Amendment.
This cannot be right. Though the
This is not to say that the state is powerless to create laws that intentionally obstruct access to information. As I show in Part IV, it can with proper justification. The outcome of Dietemann may survive scrutiny if the state can show it has a strong interest in protecting its constituents' seclusion by outlawing surreptitious recordings in one's own home.
Outside of our homes, on the other hand, enforcement of an expectation that people will not record what we say or do is in conflict with their liberty interest in knowledge creation.
To this day, the right to access information is underdeveloped.130 Its relationship to full speech rights is awkward. Courts recognize that the right to free speech is hollow without access to information, but the constitutional protection of information has yet to achieve coherence.
III. THE RIGHT TO CREATE KNOWLEDGE
This Part makes the normative case for the First Amendment protection of data. First, I define a "right to create knowledge," which is a latent prerequisite for free expression.131 Speech does very little for a government's constituents if it is not supported by commitments to free thought and information flow.
I outline a framework for analyzing whether the right to create knowledge has been impeded. A motive analysis will frequently suffice. When a law or regulation has the very purpose of limiting knowledge, the restriction must undergo First Amendment scrutiny. Data privacy laws have the unabashed goal of limiting, and shaping, what the government's constituents can know. There are often good reasons to do this. There may even be compelling reasons to do this. But, to be confident, direct regulations of data should draw scrutiny.
Next, this Part analyzes whether the protection of data is consistent with other competing scholarly theories about the First Amendment's purpose. The right to create knowledge in general, and the protection of data specifically, fit very comfortably within all of them. This Part closes with some thoughts about the level of scrutiny that should apply to regulations of data.
A. The Negative Right to Create Knowledge
The negative right to create knowledge ensures that the state will not interfere unduly with its constituents' learning. This is not an entirely new concept for courts or for scholars, but the varied instantiations of a right to knowledge have been developed in the abstract and through unusual fact patterns.
Courts have already had occasion to interpret "speech" expansively so that it encompasses the right to receive or access information.132 The impetus for doing so is plain: free speech will have little value if the government has substantial influence over the ideas and facts that speakers are permitted to consider. At a higher level of generality, the First Amendment safeguards the freedom of thought.
In 2002, the
While courts have been slow to flesh out the right to free thought, constitutional law scholars have laid a good deal of groundwork to provide a theoretical justification for deriving a freedom of thought from the freedom of speech.136
For Shiffrin, the First Amendment is called into service when a statute, regulation, court decision, or lawmaking activity (1) on its face exhibits a design to "ban or attempt to ban the free development and operation of a person's mind or those activities or materials necessary for its free development and operation"; (2) has the effect of interfering too greatly with the free development and operation of a person's mind; or (3) has a rationale which, even if not overtly designed to conflict with the free development of a person's mind, is nevertheless unacceptably inconsistent with that right.138
The right to create knowledge ought to follow the same framework, but with a narrower focus on the uninhibited acquisition of knowledge. The "free development and operation of a person's mind" has nearly infinite range. Public schools, by selecting what to teach and what not to teach, might bar other options the student would otherwise have to develop her mind. But a school's curriculum does not bar the student's opportunity to acquire specific pieces of knowledge that the student can acquire elsewhere. In short, the right to create knowledge promises freedom from intentional or excessive government restraints on learning something new.
This framework avoids the need to define the nature of "speech." Instead, the framework focuses on the nature of the state action. It asks what purpose a regulation seeks to serve and how the regulation operates in practice. The previously vexing scope question is much more manageable when the analysis centers on the regulation rather than the object of the regulation.139
A purpose-driven test lines up with
Although First Amendment scholars tend to overlook purposive analyses of speech, they are not unprecedented.141 In
The framework also supplies manageable limiting principles to the First Amendment's protection of knowledge. Not every regulation affecting knowledge will draw scrutiny; plenty of laws are inimical to a person's ability to learn new things without having a direct purpose to obstruct knowledge.145 For example, the prohibition of theftwill prevent a thief from learning the content of a book that he may plan to steal, but the purpose of the law is to enforce tangible property rights, not to inhibit the knowledge of thieves.
The thinker-based approach to speech has had a sleepy arrival to First Amendment discourse. Our government, quite fortunately, is not often in the business of overtly manipulating thought. However, the right to knowledge creation has obvious application to the modern data privacy debate. At the beginning of this exploration, the automated generation of data appeared to be a close case for speech. Though the humming of servers and the shuttering of cameras may share superficial similarities with conduct, a motive analysis reveals very clearly on which side of the speech line data privacy laws must fall. Data privacy laws are purposefully designed to interfere with somebody's (or some company's) knowledge.146
A law prohibiting the creation, maintenance, or distribution of digital information attempts to achieve its social goals by limiting the accumulation of knowledge. Data privacy laws strive to give individuals the power to decide who does and does not get to learn about them.147 As principled as these restrictions may be, they must draw scrutiny if the First Amendment is to protect the creation of new knowledge. Any other outcome spirals quickly into special pleading.
The same can be said for trade secret laws, antihacking statutes, and other information laws established to protect information security and maintain economic incentives.148 As with data privacy laws, the government may be acting out of the best of intentions, inhibiting certain thoughts that tend to produce bad effects on society. In these cases, the government may regulate thought as a way station, or convenient midway point, to achieve more tangible and legitimate goals. Nevertheless, if freedom of thought has First Amendment protection, the government must justify its programs within the judicial scrutiny that applies to other well-meaning regulations of speech.
There are, of course, other theories of the First Amendment that do not center on thought. Since no single theory can lay exclusive claim to the First Amendment, the next Subpart analyzes how well the protection of data corresponds with alternative visions for the First Amendment.
The objectives of the First Amendment are large and contain multitudes.149 At times courts have emphasized the centrality of political discourse and have given utterances of political dissent the distinctive title of "core" political speech.150 At other times, the courts have rebuked the suggestion that political speech receives greater protection than other speech.151 The objectives put forward by scholars are similarly fractured. The theories break into five nonexclusive categories152: (1) the marketplace of ideas; (2) the preservation of a public resource; (3) deliberative democracy (and, particularly, countermajoritarian expression); (4) a check on state power; and (5) self-determination. The expressive nature of data is quite consistent with the first four objectives, and the fifth poses some interesting questions.
1. Marketplace of ideas and public good theories
Proponents of the marketplace of ideas see speech as an open exchange that allows bad ideas to be bested by sounder ones.153 The public good theory is closely related. It posits that the benefits of speech are indirect (society's gradual accumulation of knowledge and rejection of bad ideas) while its harms are direct (insult, or reputational harms), so speech needs extra protection from shortsighted regulations.154 The First Amendment supports both of these goals when it limits the state from creating laws that might distort the free competition for the minds of Americans. Wrongheaded as these theories may be (the marketplace has received much just criticism),155 they inarguably have some claim to the First Amendment's original intent.156
The marketplace of ideas and public good theories dovetail with the right of knowledge creation described above. Indeed, the marketplace of ideas is understood to promote cognitive processes.157 Recorded facts are part of the marketplace. The marketplace is expected to include "the widest possible dissemination of information from diverse and antagonistic sources."158 Moreover, the marketplace of ideas is consistent with the protection of data collection, and not just its distribution. A person's opportunity to receive information and ideas should be protected whether he receives information from another person (a traditional "speaker") or through his direct observations of the world. A preference for knowledge received indirectly from other people would defy the logic of a robust marketplace.
If a chief constitutional goal is to vet ideas against one another, data is precisely the sort of grist that can corroborate or contradict various theories. Data collects for human consumption what cannot be observed directly. In the words of
Personal data has the power to dramatically shiftscientific consensus and public opinion. Consider the ulcer. The medical and popular consensus once was that ulcers were caused by stress. In fact, common law courts that required proof of physical manifestations of stress before awarding damages for negligent infliction of emotional distress accepted ulcers as such proof.160 But Barry Marshall's quest to understand a type of bacteria that can survive in stomach acid led him to the discovery that all the patients that he studied who had ulcers also had the bacteria. And when the ulcer patients were treated with antibiotics, they were cured 900% more often than those receiving conventional treatment (the conventional treatment being to "relax").161 It took another dozen years for the medical community to accept Marshall's findings, but considering they ran against a deeply rooted truism, the change in treatment and understanding was swift.162
Swifter still was the rejection of the long-accepted theory that humans killed offall of their contemporary hominid populations when Homo sapiens leftAfrica to go dominate the rest of the world.163 DNA sequencing of both a Neanderthal and a sample of modern Americans allowed geneticists
Examples of data changing minds are abundant, and they are not limited to health and genetic data. A study by
A person's access to accurate data is no guarantee that he will learn anything new. The experiments of
But biases do have limits. Accurate information increases the cost of maintaining a false belief. Eventually, accurate information reaches a tipping point and is able to overwhelm and correct the false beliefs of all but the most stubborn. Thus, after
Data can also illustrate the public good theory of the First Amendment because it tends to provide greater value to society at large than it does to any individual described by the data, who may naturally prefer to control and prevent its spread. Even the privacy rules embedded in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) have costs that are often hidden from view, since data cannot easily be moved around for research purposes.
Adverse drug reactions provide an example.176 Vioxx, the drug once prescribed for arthritis, was sold for over five years before its manufacturer, Merck, withdrew it from the market in 2004.177 Though small-scale studies found a correlation between Vioxx and increased risk of heart attack, the
2. Deliberative democracy and a check on state power
The third and fourth categories view the First Amendment as an institutional check on the tyranny of the majority and on government actors, respectively. Under these theories, free speech is compromised when the government regulates speech that empowers political dissenters, or that for some other reason it does not care for.183
On the surface, data seems to have little in common with archetypal political speech-protests, op-eds, and the like. Privacy scholars often argue that personal information is wholly different from the types of "core political speech" that most deserve constitutional protection.184 Likewise, some First Amendment scholars agree that the right to free speech is meant to protect dissident opinions most ardently, with its protections dropping offas expression becomes less political.185
This protester-centric vision for the First Amendment is occasionally echoed by courts,186 but it is a cramped and unsatisfying version of free speech. It would be unrecognizable to
But even if the First Amendment were constrained to political speech, raw information has a claim to its protection. Data can lead to the discovery or evidence of government scandals. For example, most logs of IP addresses will have no relation to political debate, but the IP addresses used to access a shared e-mail account are highly political when they happen to belong to
Consider
The opinion could have been construed narrowly, to apply only to false speech of private concern, but it has not been understood that way.
If the credit report example seems unique, consider climate science data. This data, too, has dipped in and out of the "public concern" category enough times to raise questions about the viability of the distinction. Throughout most of the twentieth century, temperature records across the country were presumably matters of public concern when they were first recorded. After all, the public has an obvious interest in the current temperature. But as time goes on, the public's concern for these records wanes. Except for extreme temperature readings, the public does not have much interest in the weather reports from five years ago. But today, some of the most important climate science data is historical temperature and ecological information-information that was collected for a different purpose, before we were aware of global warming. And so, the same data has bounced back into public concern because it relates to a live political debate.
3. Self-Determination
The autonomy or self-determination theories of the First Amendment have the most obvious overlap with the approach I've taken in this Article because the free development of the mind would, presumably, incorporate a freedom from a government's constraints on the information we are able to access- whether that information is raw data or a book. But data's relationship to selfdetermination is complex.
On the one hand, the ability to collect and mull over data is very helpful for independent thought. In the future, as we adjust to the information revolution, we may even find data to be essential to our thought processes. Future generations may marvel at the way we live today, wondering how a person can main- tain a decent quality of life without raw data about anything and everything, ready to be probed and analyzed so that his decisions can be optimized. Surely we ourselves struggle to imagine the quality of life for the generations of humans who had to live illiterately before the invention of Gutenberg's press.
On the other hand, privacy laws are developed to protect selfdetermination, too. Our freedom to develop as fully autonomous individuals will be stunted if our private information is on constant display to everybody else. Stripped of all privacy, people will naturally and rationally engage in the sort of self-restraint and self-censorship that serve neither themselves nor society at large. This inherent tension makes data privacy regulation difficult to calibrate. No doubt there are important, competing interests in privacy and access to information. At times, data access will pit liberty against liberty.
Privacy advocates and scholars have seized on the liberty-preserving aspects of privacy, but they've done so using generic platitudes that tend to overstate privacy's relationship to autonomy.203 Consider Julie Cohen's recent attempt to fortify the value of privacy against the pressures of encroaching technology.204 Privacy, according to Cohen, is a necessary precondition to liberty because it "shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable."205 Cohen goes on to say that surveillance by corporations in time creates a citizenry who lacks the capacity for democratic self-government. How we would reach these dire results is less than clear, but the idea seems to be that as corporations predict and model how we are using personal data, our lives will begin to imitate the very pigeonholes into which we've been put.206
Granted, humans are not as autonomous and immune to social pressures as they are assumed to be in classical accounts of liberal democracies. But every form of speech can be used to manipulate people. The consequences are part of the elaborate free speech experiment created by the Constitution. The Bill of Rights casts a bet that the harms from assuming people have more free will than they really do are not as bad as the harms that come from assuming people have less than they really do.
Moreover, a person who is categorized in one instance will be the categorizer in the next and will rightly expect the liberty to judge and form his own opinions. To be sure, a person's data is often used to make determinations and decisions about him, which might, at least temporarily, constrain him as compared to a world without data. A creditor will size him up when setting his interest rate, and a prospective partner on an online dating service will use generalizations and stereotypes in order to assess whether he is worthy of a first date. But he, too, is free to gather data and make judgments about the best creditor or best prospective mate. As
Scholars and public intellectuals tap into their imaginations to predict how a person's autonomy can be limited when companies have drastically increased access to her personal data, but they are much less creative when it comes time to predict how a person's life can be improved.208
Consider salt. Most of us have long internalized the advice that we should reduce our consumption of salt to improve our health and avoid hypertension, but the connection between salt and heart disease (as well as stroke) has no basis in fact. The studies finding an association are laughably flawed. The first, which launched a century-long war on salt, was based on six French patients. 209 More recent research shows no relationship or the opposite relationship; for example, one study found that subjects who had low levels of sodium in their urine had increased risk of heart disease.210 In 2013, the
A recent article by
Once the mind is opened to the potential upshot of massive data collection, the enhancements to self-determination seem boundless. Consumer behavior is already being used to predict whether a person is likely to adhere to her doctor's recommended course of treatment.220 In the future, apps might be developed to collect and analyze biometric data so that patients can be advised about their health and medical treatment by the minute. And automated data collection is already allowing employers to hire based on actual performance measures rather than the noisier signals of formal education and personal interviews (both of which can introduce bias based on race, class, and other factors). 221 In time, employers will be able to use metrics to design recruitment, pay, and promotion systems that are increasingly based on merit.222 In 2011 and 2012, over 100 U.S. children were injured or killed by products that had already been recalled.223 With more permissive data laws, notice of recalled products and food could be delivered directly to the purchasers by e-mail or text message.
Clearly, data can be used to increase the autonomy of its subjects. In time, we might come to realize that it would be irresponsible for a company not to collect and analyze the trails of data that consumers leave everywhere they go.
Even so, there are limits to the autonomy-enhancing value of data. If we had no control at all over who could observe us, when, or why, our ability to act authentically would be constrained. Some tensions between libertypreserving privacy and liberty-preserving knowledge gathering are unavoidable. But these tensions should be resolved within First Amendment scrutiny, not in deciding the First Amendment's coverage.225 After all, the creation and access to impersonal data (chemistry research or astronomy data, for example) promote self-determination through knowledge without any of the competing concerns for sufficient privacy protection.
C. The Level of Scrutiny
This Article cannot determine what level of scrutiny should apply to regulations of data flow because the answer will depend on context. Data disseminated in an advertisement, for example, will receive the lesser protections afforded to commercial speech under the Central Hudson test just like any other advertising speech.226 Also, like other forms of speech, data could presumably be categorized as a matter of "public" or "purely private" concern, which would affect the level of scrutiny. The divisions between commercial and noncommercial speech, and between public and private concern, have drawn criticism from First Amendment scholars because of problems with their consistency and administrability.227 The doctrines will be as challenging to apply to data as they are to other types of expression.
What can be said with confidence is that data should not be relegated in all cases to a lower form of protection.228
It may be tempting to exploit divisions between commercial and noncommercial speech and insist that data collected, maintained, or transmitted by a corporation is always commercial. The commercial speech designation may even seem to correspond nicely with a First Amendment that privileges free thought, since it is the human mind that deserves sanctity, and not the corporate one.229
Proponents of privacy regulations have made the same human-corporate distinction, since the corporate actors generating the largest collections of data-Big Data businesses-are also believed to be the most likely to abuse their informational advantage and harm consumers. But caution is warranted. Shiffrin sensibly recognizes that corporations who trade in communications- that is, the press-cannot be regulated under lesser constitutional scrutiny. A corporation that sells books and newspapers has significant First Amendment interests in avoiding regulation of its product. Whether these interests are direct or derivative of the authors' and readers' rights is an interesting but purely academic matter. The press gets protection. The natural follow-up question, one that Shiffrin's work did not have reason to explore in any detail, is what it means to be a "press" business corporation.
A corporation that generates and subsequently uses or sells data, even if the revenue stream is ancillary to its primary product or service, has a cognizable argument that it is in the business of communications, and is therefore analogous to a traditional press corporation. LexisNexis is an example of a corporation that should at least challenge the assumption that "the press" is a static concept; Lexis is in the business of aggregating traditional forms of speech (newspaper articles, laws, and court opinions) and creating original content for a fee. This is entirely standard "press" sort of business. But it also maintains one of the largest databases of personal information culled from private and public records, and it sells components of this database to clients and customers. 231 Lexis's trade in data is not meaningfully different from its trade in other types of information and cannot be differentiated from its "press" functions without creating limitations on the meaning of "the press" that have not previously been recognized.232 Other times, some of the most socially valuable and useful information is generated in the course of other nonspeech endeavors. The results of pharmaceutical clinical trials,233 the outcomes of standardized tests,234 or the customer lists of Swiss banks,235 for example, may have much more in common with political speech than they do with advertisements depending on how they are used.
Debates over corporate speech divide First Amendment scholars into two camps. Those who regard the First Amendment as protecting individual liberties through negative rights are, generally speaking, nonplussed by the extension of First Amendment rights to corporations. On the other hand, those who subscribe to what
The equality camp is no doubt dismayed by the
The intuitions of Madison, Pasquale, and others ally with the old adage that "knowledge is power." But there is a limit to this logic. Information is useful, but it is not, on its own, coercive.242 Moreover, corporations do not have the dominance that academics often ascribe to them. Half of the corporations that existed in 1980 are no longer around-a happy sign of our economic and scientific vitality.243 Among corporations, those in the communications and hightech sectors may stumble quickest of all. A few memorable anecdotes show that the illuminati tend to overreact to corporate power. Thirty years ago, AT&T was fingered as the corporation that had too much access to personal communications data as well as too great a share of the market in communications technologies. Its steady decline since then has had much more to do with rapidly advancing technologies than antitrust lawsuits.244 Twenty years ago Microsoftlooked like the greatest corporate threat to democracy, with the exact same results.245 Ten years ago we began to worry about
Thus, one should view with a healthy amount of skepticism
The concerns I describe here do not necessarily justify the use of heightened scrutiny in all cases; the contours of First Amendment scrutiny are complex and deserve careful consideration. Instead, these concerns are meant to raise doubts about the proposition that data automatically should receive less constitutional protection based on a generalized sense that it is "commercial," or of "purely private concern," or produced by corporations.
Whatever the level of scrutiny, a First Amendment right to create knowledge will lead to some consequences that are difficult to accept: the leveling of popular consumer privacy laws, long-established trade secrets protections, or all-party-consent wiretap statutes. The next Part addresses the most obvious objections and concerns.
IV. COPING WITH SCRUTINY
Many insightful scholars have contemplated the prospect of a First Amendment application to data and have concluded that the results are so absurd, and so debilitating to human progress, that the premise simply cannot be correct. At the very least, they have said, it cannot be just.248
This Part examines the potentially troubling implications of a right to knowledge creation. The first, and most obvious, is that the consequences of First Amendment scrutiny are just too restrictive to bear. The consequences to existing and proposed privacy legislation will wreak havoc on consumers and vulnerable populations.249 To the contrary, the most alarming privacy problems can be addressed through laws that are narrowly tailored to compelling interests in seclusion and confidentiality and thus survive scrutiny at any level. Regulators are also free to craftrestrictions on conduct that treat people differentially based on personal data without interfering with the actor's access to information. While it is true that the First Amendment will prohibit sweeping data privacy laws, these consequences are not so perverse as to merit a deliberate unraveling of First Amendment commitments.
A. Concern 1: Scrutiny Will Kill Privacy and Other Good Things
Constitutional scrutiny threatens to thwart a lot of law both produced through the democratic process and representative of the better judgment of the majority. This raises an entirely legitimate concern: can we handle the consequences of nearly free data flow?
If courts abandon the distinction between information collection and information disclosure, which I think they must, they will be faced with the daunting task of drawing a principled line around information-gathering practices that excessively interfere with individual liberty. Though property rules can do some of the work by imposing liability for trespasses, modern technology allows conversations to be intercepted, driving routes to be traced, and DNA to be sequenced without breaking any generally applicable property rules. Courts will have to balance society's competing interests in seclusion and information production. This will be a challenging task, but a worthwhile one. It is the cost of a fundamental right to perceive the world and create new knowledge without unjustified interference. The government does not have the authority to curate the information we receive.
Data is not the first form of speech to cause problems, but the problems data causes occur on a vastly different scale. Because modern gadgets produce rich data trails, we are surrounded by recordings of facts that were too minute to be noticed, let alone written down, before the computerized era. But today, without interfering with any generally applicable rules, a person can intercept a cell phone or Internet communication of another. Or he can hack into the other's bank website or medical records portal and receive information that way. Or he can swab the other's disposed coffee cup and analyze his genotype. With the exception of the coffee cup swabbing, all of these activities run afoul of federal criminal statutes.250 But these statutes are not generally applicable laws; they are designed for the singular purpose of interfering with the actor's access to new knowledge. If these types of data protections have the potential to draw constitutional scrutiny, courts will have to either justify the regulation on the basis of an important public interest or allow the information collection to proceed. The thought that courts may choose the latter is, undoubtedly, a dreary prospect.
These fears are far-fetched. The judiciary certainly could mangle scrutiny and annihilate personal privacy just as it could have found that time, place, and manner restrictions of speech are unconstitutional. But both path dependency and common sense suggest that they will not. As
The right to seclusion serves as a good example. Seclusion provides respite from observation and judgment. Seclusion serves a variety of social goals: It allows us to engage in productive secrets. Seclusion is where a person can practice and fail in peace. In the words of
Seclusion has already proved to be a sufficiently compelling interest to survive First Amendment scrutiny. Laws protecting seclusion have been found to "serve the undisputedly substantial public interest in allowing each person to maintain an area of physical and sensory privacy in which to live."255 However, the need and expectation of seclusion cannot go far beyond the home, private conversations, and other narrow circumstances. Otherwise the diminishing returns of seclusion will have increasingly severe effects on the liberty of others. 256
Seclusion is not the only legitimate basis for limiting the creation or dissemination of data. The public's interest in the confidentiality of certain special relationships, such as between a doctor and a patient, can be a compelling reason to limit the dissemination of information because, in the case of health care relationships, public health improves if patients can be honest and forthright with their doctors.257 And the public's interest in the enforcement of antidiscrimination laws can justify a narrowly drawn restriction on the sorts of information that an employer can ask a job candidate to provide.
The First Amendment is unlikely to be interpreted so inflexibly as to kill offprivacy. The much more likely scenario is that privacy will help save the First Amendment from developing a reputation of impossible, impassable standards of strict scrutiny. In 1972,
That said, a right to create knowledge will have casualties. Some existing privacy laws should not be able to withstand constitutional scrutiny. For example,
Other American privacy laws are inspired by an important public interest in confidentiality or seclusion in specific contexts, but may fail the tailoring analysis.
Consider the Fair Credit Reporting Act (FCRA), a federal law that penalizes anybody who accesses another's credit report for any reason outside a preset list of authorized uses (e.g., to determine creditworthiness). 261 The D.C. Circuit already decided that the FCRA survives intermediate scrutiny in
In
The mother did not attempt to assert a First Amendment defense to challenge the enforcement of the FCRA in her case, but her facts illustrate problems with the privacy law. Even if the mother's suspicions had not been validated by the information she sought, the privacy law interferes with her natural, even laudable, instincts to test a hunch against actual facts. By defining "credit reports" so broadly, the statute ensnared and punished a person for following her curiosity. Borrowing from Kurt Vonnegut: "I love her for that, because it was so human."267
HIPAA has similar problems. The duty of doctor-patient confidentiality was originally developed within the common law tort system. The duty was removed when a doctor's disclosure of a patient's health information served the public interest, or the interests of other individuals (e.g., sexual partners). The common law system had the flexibility to develop the rules on a case-by-case basis, so that the public interest override could evolve without risk of undermining confidentiality.268 HIPAA regulations, in contrast, attempt to anticipate and account for every public policy override, and set an otherwise inflexible rule of nondisclosure.269 As a consequence, HIPAA's privacy provisions have had perverse effects on access to critical research data, quality of care, and overall public health.270
Going forward, if I am correct about a First Amendment right to knowledge creation, courts will need to scrutinize whether a privacy law is actually tailored to specific, weighty interests in seclusion or confidentiality. A well-tailored regulation will create limitations on particular disclosures and misuses of information, rather than creating global bans on data collection and distribution. Legislatures will need to tailor use restrictions to avoid the pernicious effects of data flow, rather than to attempt to deplete the flows themselves.
B. Concern 2: If Data Is Speech, Regulators Are Hamstrung
This Article has shown that government cannot limit the collection or dissemination of data in order to achieve certain preferred ends without a compelling interest to do so. In an information economy, this is a real and significant restraint on state power. However, the government can achieve its preferred ends through appropriate regulation of conduct. When a business uses information to implement a decision or course of action, the implementation is usually treated as conduct. Conduct regulations will often achieve the objectives more directly than the regulation of the information that preceded the conduct.
For example, the Fair Housing Act constitutionally prevents a landlord from implementing a decision to decline a prospective tenant on account of the tenant's race.271 This federal law restricts the uses to which a landlord may be tempted to put a piece of information-the race of a tenant. Although the Fair Housing Act does not, and practically could not, prevent a landlord from taking notice of a prospective tenant's race during a face-to-face meeting, the landlord's documentation of the tenant's race, or his inquiry over the phone about the tenant's race, though forms of speech, will constitute strong evidence that the landlord has engaged in racially disparate rental policies.272
Thus, if increased access to personal information winds up having detrimental effects on society,
Let's examine a couple concrete examples. Consumer advocates worry about price discrimination on the basis of the information collected by webtracking mechanisms.274 Nothing in this Article prevents these groups from lobbying for a statute prohibiting price discrimination on the basis of web usage. Likewise, it bothers
When these privacy concerns are reframed as use restrictions, the concerns are revealed to be misguided. Business practices can be justly criticized when they exploit financially vulnerable populations, but the most popular business uses of personal data tend to benefit traditionally disadvantaged consumers. Web-tracking information, if it is ever used for pricing, is used to charge certain affluent web surfers (like Mac users) more than others.276 And credit decisions made on the basis of factors other than income will have the salutary effect of reducing interest rates for poor-but-creditworthy consumers (and of increasing the interest rates for higher-income-but-unreliable debtors).277 It may be that some information collected by web-tracking technologies is the sort of intimate data that should be shielded from the scrutiny and use of others through the right to seclusion.278 But the problems anticipated by privacy advocates have not been carefully thought through.
Similarly, the government may (as it has279) prohibit health insurers from using information about gun ownership when pricing health policy premiums. Such a law makes the deliberate choice to force non-gun owners to subsidize the health insurance of gun owners. Policymakers are free to craftthese discrete restrictions on information use, and then take the political consequences of the assumptions and priorities that are reflected in the laws.
But data privacy regulations that attempt to hamper the pace of information accumulation favor the noisy signals of yesterday's data environment over the more precise signals of tomorrow out of an unfounded assumption that better information will produce worse results for society. If the state has reason to think this is true in some circumstances, it can regulate conduct within those circumstances. But the state should not maintain an information status quo for its own sake.
There is another underutilized arrow in the legislature's quiver, too. Even if lawmakers are constrained from banning the collection or dissemination of data, they can always employ their considerable power to compel disclosures. For example, a law requiring anybody who wishes to record another person to provide notice of the recording will not, under usual circumstances, interfere with a person's right to record.
C. Concern 3: Scrutiny Is Subjective at Best, Political at Worst
Another concern is that judges will not be able to keep their personal or political beliefs from improperly influencing the scrutiny analysis.
But these problems are not peculiar to data. Every time courts apply constitutional scrutiny, they sit in judgment about which state interests are sufficiently compelling and which are not. Human bias and error are intrinsic to judicial scrutiny, but this is the least worst of our options.
CONCLUSION
When privacy scholars argue that data should be treated differently from traditional forms of communication (utterances, journals, movies, and the like), they often do so for entirely rational and admirable reasons. If the First Amendment is too strong, and obstructs regulations that target low-value and negative-value speech, then the First Amendment will pose massive inefficiencies in our self-governance. Skepticism about the
The authors of the Bill of Rights could not have foreseen an avalanche of data when they drafted the First Amendment. But however they would have felt about Big Data, the restraints that they created were expected to frustrate the government, even when speech regulations are well intentioned. The First Amendment is, in many ways, an experiment that hinders the government from deciding what speech, and what thoughts, are good, even if most levelheaded people could agree on the matter. After all, a benevolent dictator is still a dictator.
But there is another, less pessimistic, explanation of the First Amendment's restrictions. Our predictions about the negative effects of speech and information are frequently proven to be wildly offthe mark. Every new innovation provokes a flurry of fear and draftlegislation, leaving behind the remnants of technopanic.282 To take just one example, Caller ID, a service that is now taken for granted, was once the center of such heated privacy debate that the
This
In 1919, over the course of four opinions, Schenck v. United States,290
Before the year 1919 came to a close,
Information about the war led
1.
2. It is, as
3. Although the word "data" is the plural form of "datum," in the context of this Article, I usually use the word as a mass noun (like "information" or "the media").
4.
5. Cf. id. at 715 (Black, J., concurring).
6. Moreover, even facts that are not connected to matters of grave public concern, such as the price of a prescription drug, may receive the treatment and protection of speech. See, e.g., Va. State Bd. of Pharmacy v. Va.
7. If
8.
9. NEV. REV. STAT. § 465.075 (2013) (criminalizing the use of a device which "[a]nalyzes the probability of the occurrence of an event relating to [a] game"). For a thorough discussion of the First Amendment implications of this and similar card-counting statutes, see
10. See discussion infra Part II.C.
11. Bartnicki v. Vopper,
12. Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended at scattered sections of 18, 26, 29, and 42 U.S.C.).
13. Do-Not-Track Online Act of 2011, S. 913, 112th Cong. (2011); Do Not Track Me Online Act, H.R. 654, 112th Cong. (2011); FED. TRADE COMM'N, PROTECTING CONSUMER PRIVACY IN AN ERA OF RAPID CHANGE: RECOMMENDATIONS FOR BUSINESSES AND POLICYMAKERS (2012) [hereinafter FTC PRIVACY REPORT], available at http://ftc.gov/ os/2012/03/120326privacyreport.pdf;
14.
15.
16.
17. See, e.g.,
18.
19.
20.
21. Intent-based analyses are not new to First Amendment case law, though they are overlooked in the literature. I discuss cases applying motive-based analyses below in Part III.
22. See generally
23. Trademark protection, based on theories of dilution, can also disrupt the spread of accurate information.
24.
25.
26. Ettore v. Philco Television Broad. Corp., 229 F.2d 481, 485 (3d Cir. 1956).
27. This raises many worthwhile questions about how to distinguish between objectivity and subjectivity, and more fundamentally, whether objectivity is possible. This Article does not engage these questions. The definition used here is in line with systems theory's use of the term, but it is not how the term is used in information theory. Computer scientists use a definition of "information" that is both broader and narrower than this Article's. In information theory, information is a sequence of signals that can be interpreted as a message of any sort (not exclusively factual).
28. A recording of the person who yells it, however, would be a factual representation of what was said, by whom, and how.
29. See The Data Deluge, ECONOMIST (
30. Server data is the series of messages sent between an end user's computer or device and a website's servers. These messages instruct the server to send the website's code and web objects back to the end user's machine, so that the machine can build the website for the end user to view.
31. Bambauer, supra note 24, at 239-40.
32.
33.
34.
35. These seeming exceptions can be understood, though, as statutory law forbidding certain conduct-for example, conditioning employment on gender or colluding on the price of a good. Though this conduct is inevitably carried out through communications, the communications merely evidence the decision or action that
36. Richards, supra note 14, at 1173-74.
37. Defamatory speech is an apt example. In some cases, the Court insists that there is no constitutional value in false, defamatory statements, and that such statements receive protection only incidentally to protect other speech. See, e.g., Gertz v.
38.
39. Schauer, supra note 34, at 1781, 1805-06.
40. The Sherman Antitrust Act defines criminal behavior in terms of contract. See 15 U.S.C. § 1 (2012). The enforcement of hostile work environment sexual harassment claims does implicate, as Schauer says, the regulation of speech, see Schauer, supra note 34, at 1805, but it is also not clear that these claims would fail to draw First Amendment scrutiny.
41. Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729 (2011).
42.
43. Sorrell v.
44.
45. Stevens, 559 U.S. at 479 (second alteration in original) (quoting Cohen v.
46.
47. Id. at 415, 481.
48. However, I do comment on this briefly at the end of Part III. I do not comment, except for here, on the many ways that expression can be affected by the government's failure to pass laws promoting and encouraging speech. Because the First Amendment provides a negative right to the governed, not a positive one, the state's omission will not be a violation of the First Amendment even though the effects could be dramatic. To appreciate the role that speech-facilitating statutes can play, see
49.
50.
51. 131 S. Ct. 2653 (2011).
52. Id. at 2660-62.
53. Id. at 2667.
54. Id.
55. Id. at 2663-64 (relying on viewpoint discrimination).
56. This is not the first time
57. 245 F.3d 809 (
58. Id. at 818 (citing
59. 182 F.3d 1224 (10th Cir. 1999).
60. 47 U.S.C. § 222 (2011).
61. See id. at 1228 n.1 (quoting 47 U.S.C. § 222(f)(1)(A)-(B)).
62. See id.
63. See supra notes 30-31 and accompanying text.
64.
65. See id. at 1232.
66.
67.
68. Restrictions on data might, thus, automatically fail the "unrelated[ness]" rule set out in Buckley v.
69.
70. Va. State Bd. of Pharmacy, 425 U.S. at 756-57. Note that the Court applied intermediate scrutiny since the advertisements consisted solely of commercial speech. See id. at 770-71.
71. Id. at 762. The reporting of research findings is also given the protection of speech. See Bd. of Trs. of
72. Va. State Bd. of Pharmacy, 425 U.S. at 764.
73. Id. (citing Chi. Joint Bd. v. Chi.
74. Id. at 759-60 (citing Bigelow v. Virginia,
75. Id. at 764-65.
76. Martin v. City of Struthers,
77.
78. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
79. Id. at 348 (quoting Miller v.
80.
81. Other case outcomes are consistent with this understanding. The court in
82. 17 U.S.C. §§ 1201(a)(2), (b)(1) (2012).
83. 273 F.3d 429, 435-36 (2d Cir. 2001).
84. Id. at 445. This may satisfy residual doubts that raw data and web logs are expressive. The court went on to state: "Mathematical formulae and musical scores are written in 'code,' i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment." Id.
85. Id. at 448-49 (contrasting the facts before it with
86. However, the difference between these two is razor thin-as thin as a difference in intent.
87. Dietemann v.
88. Id. at 245-46.
89. Id. at 245.
90. Id. at 249 ("He invited two of defendant's employees to the den. One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves.").
91. Id.
92. Id. (emphasis added).
93. Id. at 250.
94. As Post has noted:
[I]t is not possible constitutionally to distinguish speech from action on the ground that the former communicates ideas or uses language. The implication of this conclusion is quite significant, for it suggests that speech cannot be distinguished from action because of some common property that "speech" possesses but that "action" does not.
POST, supra note 36, at 3-4; see also
95. This unrestrained right of the journalists to report what they had observed may have its roots in Sidis v.
96. Dietemann, 449 F.2d at 249.
97. Recording and communications technologies, starting with spoken language itself, have become critical to the human experience because they enhance what
98. Bartnicki v. Vopper,
99. Except through the application of neutral regulations, such as traffic and labor laws, the answer of course is no. A law that burdened production in order to thwart the production is another matter.
100. In Part IV, I discuss the considerable public interests in preserving seclusion and suggest that laws tailored to these interests should be able to withstand First Amendment scrutiny. Thus, the outcome of Dietemann does not seem nearly as troubling as its reasoning, which would remove all prohibitions of recordings from First Amendment coverage.
101. See CAL. PENAL CODE § 631-32 (West 2013); CONN.
102. Pineda v.
103. These concepts are referred to as data "minimization" and "destruction." See FTC PRIVACY REPORT, supra note 13, at 29; WHITE HOUSE PRIVACY REPORT, supra note 13, at 52.
104. See supra note 13.
105. The division between information and information gathering is
106. In fact, photographs have always been grids of data. Black and white film is simply a grid of light-sensitive silver grains that record their exposure to light.
107.
108. Porat v.
109. 2005 WL 646093, at *4-5 (citing Hurley, 515 U.S. at 568).
110. Id. at *5 (citation omitted); see also Carson v. Cnty. of
111. 438 F. Supp. 2d 504, 506-07, 512-13 (D.N.J. 2006). Courts will also find a First Amendment interest if the photographer has no particular audience in mind, but hopes very much to capture something interesting which might later prove to be valuable to an audience. Such was the case with
112. Spence v.
113.
114.
115. The same can be said for the regulation of data more generally. By the time litigants ask courts for First Amendment protection of their databases, the data has already proven to be interesting to some audience. The prescription data in
116. See, e.g., Kelly v. Borough of
117. See, e.g.,
118. Letter from
119. 679 F.3d 583, 586-87 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012).
120. The court reserved for another day the decision whether surreptitious recordings and recordings in nonpublic places receive different First Amendment treatment. Id. at 606.
121. Id. at 595-97.
122. 499 F.3d 553, 557-58 (6th Cir. 2007).
123. Id. at 559.
124. Id. at 559-60, 563 (quoting D'Amario v. Providence Civic Ctr. Auth., 639 F. Supp. 1538, 1543 (D.R.I. 1986)); see also Shulman v. Grp. W Prods., Inc., 955 P.2d 469, 474-75, 497 (Cal. 1998) (protecting the right to broadcast conversations surreptitiously recorded in a medivac helicopter, but offering no protection for the right to record the conversations in the first place). No reasons were given for adopting a lower standard for the right to access to information.
125.
126.
127. Id. at 388.
128.
129.
130. Adding to the confusion is the fact that the same phrase is sometimes used to mean a positive right-the affirmative obligation for the government to provide public access to books and information. For a discussion of both the positive and negative qualities, see
131. I use this phrasing rather than the right of "access to information" because it avoids ambiguity. "Access to information" has been used to describe many proposed rights, includ ing positive rights of access to government information and to libraries. See sources cited supra note 130.
132. See discussion supra Part II.A.2.
133.
134.
135. Ashcroftv. Free Speech Coal.,
136. See, e.g.,
137.
138. Id. at 287.
139. Quests to find the meaning of "speech" in the abstract, without reference to any particular state action, have led to a good deal of frustration among scholars. See, e.g.,
140.
141. See Bd. of Educ. v.
142.
143. Id. at 377.
144.
145. For this reason,
146.
147. The very first principle guiding the
148.
149. Apologies for butchering a beautiful
150.
151.
152. For academic works advancing these different theories, see
153. See JOHN STUART MILL, ON LIBERTY 55-56 (
154. Farber, supra note 152, at 560.
155.
156. "If there be any among us who would wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is leftfree to combat it."
157. POST, supra note 36, at 6.
158.
159. POST, supra note 36, at xi-xii. It should be noted that Post focuses here on an entirely different question from the one that I address. Post is setting up a discussion about the inherent tension between speech and expertise, between a desire to increase speech while also developing the skills to discriminate between claims and reject those that do not survive accepted methodologies.
160. See, e.g., Richardson v.
161.
162. Id.
163.
164. Id.
165.
166. Id. at 217; see also
167.
168.
169. As she notes:
Big Data is the ultimate expression of a mode of rationality that equates information with truth and more information with more truth, and that denies the possibility that information processing designed simply to identify "patterns" might be systematically infused with a particular ideology. . . . But the denial of ideology is itself an ideological position.
Id. at 1924. One might think that Cohen is making an epistemological relativist argument of the "lies, damn lies, and statistics" sort, suggesting that no data methodology can have any greater claim to truth than any other. But she acknowledges that data analysis is able to produce increased "predictive rationality." Instead, Cohen argues that equating accurate description with "truth" is a value judgment, and one that should be questioned. See id. at 1925.
170. To the extent data analytics has an ideology at all, it is the "Money Ball" ideology: a willingness and readiness to reject the prevailing stereotypes and conventional wisdom in the face of countervailing evidence. See MICHAEL LEWIS, MONEY BALL: THE ART OF WINNING AN UNFAIR GAME (2003).
171. As
172.
173. See DAN ARIELY, THE (HONEST) TRUTH ABOUT DISHONESTY: HOW WE LIE TO EVERYONE-ESPECIALLY OURSELVES 25-27 (2012) (describing experiments showing that people will cheat less when they must confront data showing that they have cheated-even if they have no risk of being caught);
174.
175. See Judgment Day Doesn't Dawn, NEWS24 (
176. I am indebted to
177.
178.
179.
180. Evans, supra note 176, at 456 & nn.250-51.
181. Id.
182. Data can be shared with the broader research community only if the data is deidentified in compliance with 45 C.F.R. § 164.514(a)-(b). This usually hampers researchers from linking records between health providers. Alternatively, a health provider may go through the steps of creating a "limited data set" that removes all direct identifiers (again preventing any linkages with other health provider records), and that also is accompanied by a data release agreement in compliance with 45 C.F.R. § 164.514(e).
183. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 26-27 (1960). The deliberative democracy theories best explain the emphasis on content neutrality as a trigger for heightened First Amendment scrutiny. This idea, and its shortcomings, are explored in
184.
185. See, e.g.,
186. See
187.
His focus on free speech as part of the mutual and potentially reinforcing relationship between the individual and society closely resembled Dewey's postwar analysis of free speech, as Dewey himself recognized. For Brandeis, as for Dewey, by protecting free speech the state liberates individuals, who in turn contribute to society.
188. Whitney v.
189.
190. "For all his emphasis on the contributions individual free speech makes to democratic governance, Brandeis also believed that a democratic state has obligations to promote individuality, including its expression through free speech, as an end in itself." RABBAN, supra note 187, at 370.
191.
192. Wolfers discovered a statistical anomaly-teams that were heavily favored to win a game too frequently won the game by just a little bit less than the spread.
193.
194. Id. at 751-52.
195. Id. at 759-60.
196. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).
197. POST, supra note 36, at 18.
198. Id. at 28.
199. Id. at 15. For the Court's current approach to flag burning, see
200. Solove, supra note 22, at 1000, 1016, 1026. Solove endorses the definition of "public concern" articulated by the Second Restatement of Torts: information that the "the public has a proper interest in learning about." Id. at 1000 (quoting RESTATEMENT (SECOND) OF TORTS § 652D (1977)) (internal quotation mark omitted).
201.
202.
203. For example,
204.
205. Id.
206. Certain modern data practices are, according to Cohen, "designed to produce a particular way of knowing and a mode of governance designed to produce a particular kind of subject. Its purpose is to produce tractable, predictable citizen-consumers whose preferred modes of self-determination play out along predictable and profit-generating trajectories." Id. at 1917. In fact, data analysts make conscious efforts to avoid "overfitting" the data and producing models that do not track actual behaviors and preferences. See, e.g., Don't Overfit!, KAGGLE, http://www.kaggle.com/c/overfitting (last visited
207. See FREDERICK SCHAUER, PROFILES, PROBABILITIES, AND STEREOTYPES (2003) (laying out the case for generalizations and stereotypes for many (but not all) contexts).
208. See, e.g., VIKTOR MAYER-SCHÖNBERGER, DELETE: THE VIRTUE OF FORGETTING IN THE DIGITAL AGE (2009) (describing disturbing shifts in power as a result of increased information);
209.
210. Id.
211.
212. Id.
213. See id.
214. Likewise, if consumer data had been linked to medical records, we would have learned long ago that taking antioxidant supplements greatly increases the chances of dying from cancer.
215.
216.
217. Twenge, supra note 215.
218.
219. The personal data collected from the iPhone app Glow can be mined to learn more about fertility, too. Glow offers advice to couples who are trying to conceive based on the wisdom of medical consultants as well as, the hope is, crowdsourced wisdom from other users of the app.
220.
221.
222. We may also learn that some industries are better or worse than we think in terms of rewarding merit.
223. See SARAH
224.
225. In Part IV, I discuss compelling interests in seclusion and confidentiality, which should be capable of overcoming First Amendment scrutiny (assuming the law is narrowly tailored).
226. Cnt.
227. See, e.g.,
228.
229. It is worth reflecting on the ways in which human memory and decisionmaking have become more similar to those of a corporation. Technologies have allowed us to outsource the memorization of information to our cell phones and the Internet and to make algorithmic decisions that require the processing power of a computer.
230. Shiffrin, supra note 114, at 286.
231. LexisNexis Public Records, LEXISNEXIS, http://www.lexisnexis.com/en-us/ products/public-records.page (last visited
232.
233. See Ben Goldacre, Op-Ed., Health Care's Trick Coin, N.Y. TIMES (
234. See Anemona Hartocollis, Racial Gap in Test Scores Found Across
235.
236.
237. Austin v. Mich.
239.
240.
241. Bhagwat, supra note 15, at 877-78. Bhagwat argues that, because privacy laws are designed to protect citizens rather than to manage the reputation of the government, these laws should be treated categorically differently than other speech restrictions and entitled to less scrutiny. Id. He makes no attempt to explain how his proposal can be squared with the plethora of First Amendment cases pairing the torts of public disclosure and intentional infliction of emotional distress. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207 (2011) (finding a First Amendment limitation on the tort of intentional infliction of emotional distress);
242. Shiffrin justifies heightened protections for speech precisely because speech is simultaneously more exact and precise in its message, and more respecting of others' autonomy, than "a wordless punch in the nose" could ever be. Shiffrin, supra note 114, at 305.
243. See RIDLEY, supra note 50, at 111.
244. See ROBERT W. CRANDALL &
245. A cynic might wonder if Microsoftis leading the charge for increased privacy (e.g., by enabling the "Do Not Track" option in Internet Explorer 10 by default) because it knows it cannot compete with its competitors on the basis of data analysis and innovation.
246. RIDLEY, supra note 50, at 111.
247.
248. See supra notes 14-17.
249. These are the primary concerns of
250. The first example violates Title III, which prohibits wiretapping outside of several narrowly defined circumstances. See 18 U.S.C. § 2511 (2012). The second example violates the Computer Fraud and Abuse Act. See 18 U.S.C. § 1030 (2012).
251. Bridges v.
252. Elsewhere I have championed the significant societal interests in confidentiality and the public disclosure tort, provided that these routes to recourse are narrowly tailored to target truly harmful information flows.
253.
254.
255. Shulman v. Group W Prods., Inc., 955 P.2d 469, 495 (Cal. 1998).
256.
257. Bambauer, supra note 24, at 262-65.
258.
259.
260. See Press Release,
261. 15 U.S.C. §§ 1681b, 1681n (2013).
262. 267 F.3d 1138, 1142-43 (
263. Id. at 1141-42.
264. 312 F.3d 357 (8th Cir. 2002), abrogated by Safeco Ins. Co. of Am. v. Burr,
265. Id. at 360-61.
266. See id. at 365-67.
267. KURT VONNEGUT, SLAUGHTERHOUSE-FIVE 19 (Dell Publ'g Co. 1985) (1969) ("And Lot's wife, of course, was told not to look back where all those people and their homes had been. But she did look back, and I love her for that, because it was so human. So she was turned into a pillar of salt.").
268. See, e.g., Tarasoffv.
269. 45 C.F.R. § 64.512 (2013) (enumerating particular exceptions to the general disclosure prohibition rather than setting out a flexible standard).
270.
271. Fair Housing Act of 1968 § 804, 42 U.S.C. § 3604 (2011).
272. Other examples of restrictions on the use of information include laws prohibiting insider trading and the Affordable Care Act's prohibition against health insurers setting prices or coverage based on preexisting medical conditions. Patient Protection and Affordable Care Act § 1101, 42 U.S.C. § 18001 (2011).
273. Broad restrictions on use that outlaw all uses of information, or all but a narrow set of uses, strive to contain and control knowledge and should be treated as intentional regulations of thought, especially since one use is presumably dissemination of the information. This is not to say such a law could not survive scrutiny; confidentiality laws are a form of blanket-use restriction since a doctor is expected to use the information he receives only for the limited purposes of patient treatment or public health.
274.
275.
276.
277. For a discussion about how the collection of personal data has democratized the availability of consumer credit, see
278. I have suggested so myself, though not through the lens of constitutional scrutiny. Bambauer, supra note 24, at 244-53.
279. Patient Protection and Affordable Care Act § 10101(e), 42 U.S.C. § 300gg- 17(c)(4) (2011).
280. Sorrell v.
281. In
282. The consequences are worse when legislation is passed.
283. Delivery Requirements and Privacy Restrictions, 47 C.F.R. § 64.1601(b) (2013).
284. Calling Number Identification Service-Caller ID, 60 Fed. Reg. 29,489, 29,489 (
285. Today the Caller ID debate looks especially odd since, we would say, the caller is imposing a call into the recipient's home, and thus should expect significantly less privacy. Even if the caller, too, is sitting in his own home, we see the placement of the phone call as an obvious and intentional transmission out of the home. But this goes to show that "the home" is a social construct that changes with increased technological education. The next generation may look at ours and wonder why a person sitting in their home but surfing the Internet would consider anything they do online to be "private."
286.
287. MAYER-SCHÖNBERGER, supra note 208, at 196-97.
288.
289. RABBAN, supra note 187, at 249-55.
290.
291.
292.
293.
294.
295. RABBAN, supra note 187, at 342. For more information on the political fracturing caused by the Treaty of Versailles, see
296. See RABBAN, supra note 187, at 351;
297.
298.
299. RABBAN, supra note 187, at 346. The explanation
300. Abrams, 250 U.S. at 629 (Holmes, J., dissenting).
* Associate Professor of Law,
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