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Big Data: Destroyer of Informed Consent
In: Yake Journal of Health Policy, Law, and Ethics, Forthcoming
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Lessons Learned Too Well: Anonymity in a Time of Surveillance
It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity-one of the two most important tools that protect online communicative freedom-is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names. This Article traces the global development of technologies and regulations hostile to online anonymity, beginning with the early days of the Internet. Offering normative and pragmatic arguments for why communicative anonymity is important, this Article argues that anonymity is the bedrock of online freedom, and it must be preserved. U.S. anti-anonymity policies not only enable repressive policies abroad but also place at risk the safety of anonymous communications that Americans may someday need. This Article, in addition to providing suggestions on how to save electronic anonymity, calls for proponents of anti-anonymity policies to provide stronger justifications for such policies and to consider alternatives less likely to destroy individual liberties. In a time where surveillance technology and laws demanding identification abound, protecting the right to speak freely without fear of official retribution is critical to protecting these liberties.
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Lessons Learned Too Well: Anonymity in a Time of Surveillance
In: Arizona Law Review, Forthcoming
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From Anonymity to Identification
This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational levels. As a result of these forces, online anonymity is now much more difficult than previously, and looks to become less and less possible. Nevertheless, the ability to speak truly freely remains an important 'safety valve' technology for the oppressed, for dissidents, and for whistle-blowers. The article argues that as data collection online merges with data collection offline, the ability to speak anonymously online will only become more valuable. Technical changes will be required if online anonymity is to remain possible. Whether these changes are possible depends on whether the public comes to appreciate value the option of anonymous speech while it is still possible to engineer mechanisms to permit it.
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Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements
In: 2015 U. Ill. L. Rev. 1713 (2015)
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Pets Must Be on a Leash': How U.S. Law (and Industry Practice) Often Undermines and Even Forbids Valuable Privacy Enhancing Technology
In: Ohio State Law Journal, Band 74, Heft 6
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Building the Bottom Up From the Top Down
"Bottom up" governance. "Self-organization." These are among the most talismanic virtue-words of modern political discourse. Yet the reality is that in politics, "self-organization" is rare, being hard to initiate and even harder to sustain. As Oscar Wilde once complained about socialism, it "requires too many evenings." Governance as we tend to know it depends primarily on hierarchical institutions, or on close coordination within small groups. True partnerships, conversations among engaged equals, do not seem to scale. Indeed, whether one believes the fundamental problem to be something about the economics of group formation, the iron law of oligarchy, or something in between, experience demonstrates repeatedly that the problem of group self-organization, not to mention self-governance, is all too real both in politics and other walks of life. Enthusiasts of modern communications have not been slow to point out the ways in which the Internet (and the cell phone) change the ways in which all types of groups form and communicate. For example, Internet-based 'social software' drastically lowers the cost of group formation and offers at least the potential of tools that may make group self-governance more practicable. While this optimism is valuable and may some day be realized, the current reality falls far short of the ideal and seems likely to do so for the foreseeable future. This paper suggests that existing institutions could be harnessed to grow the tools and nurture the conditions that promote self-organization of groups and democratic decentralized self-governance. I identify eight specific governmental policies that could usefully be adopted in any relatively wealthy liberal democracy to promote the formation of groups and assist them once they are formed: 1. Democratizing access to communication by ensuring that the communications infrastructure is widely deployed, inexpensive, and of suitable quality. 2. Enact legal reform (if not already in place) to prevent cyber-SLAPP lawsuits. 3. Apply competition law aggressively to markets for communications technologies in order to ensure that no software or hardware maker can exert control over citizens' means of communication. 4. Provide reliable data, and act as honest archivist. 5. Assist those who desire aid (but only them) to fight spam and other forms of discursive sabotage. 6. Ensure that Meetup-like services are available at low (or no) cost (if demand for these key services proves to be elastic as to price) and subsidize facilitative technologies, such as group decision-making software. 7. Enact a digital workers rights policy including a component that encourages digital or even physical meetings. 8. Provide a corps of subsidized online neutrals to settle non-commercial disputes among members of virtual communities.
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Building the Bottom Up from the Top Down
In: 5 I/S: A Journal of Law and Policy for the Information Society 141 (2009)
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Identity Cards and Identity Romanticism
This volume examines key questions about anonymity, privacy and identity in an environment that increasingly automates the collection of personal information and uses surveillance to reduce corporate and security risks. Privacy and issues of identity are here examined through an interdisciplinary lens, informed by the results of a major research project that brought together a distinguished array of philosophers, ethicists, cognitive scientists, lawyers, cryptographers, engineers, policy analysts, government policy makers and privacy experts
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The Uneasy Case for National ID Cards
Privacy and security are typically considered in isolation. Advocates of privacy have sought to protect individuals from snooping corporations, while advocates of security have sought to protect corporations from snooping individuals. This book aims to merge the discussion of these two goals, bringing together many of the world's leading academics, litigators, and public policy advocates to work towards enhancing privacy and security. While the traditional adversary of privacy advocates has been the government, in what they see as the role of the Orwellian Big Brother, the principal focus of this book is the fraternity of Little Brothers—the corporations and individuals who seek to profit from gathering personal information about others.
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The Plural of Anecdote Is 'Blog
In: Washington University Law Review, Band 84, S. 1149
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A Dispatch From the Crypto Wars
Matt Curtin's Brute Force is a primarily personal account of one early effort to harness the power of distributed computing. In 1997, Mr. Curtin and other members of the DESCHALL (DES Challenge) project built, distributed, and managed software that united thousands of computers, many of them ordinary personal computers, in the search for a single decryption key among 72 quadrillion possibilities. The DESCHALL project sought to demonstrate that DES, then the U.S. national standard encryption algorithm, was no longer as secure as advertised. While Brute Force also offers some background on encryption regulation, export control policy, and other aspect of the Crypto Wars, it succeeds best as an almost diaristic account of the technical and organizational challenges at the heart of one of the earliest largescale widely dispersed volunteer computing projects. The DES cracking project chronicled in Brute Force exemplifies the interplay between technology and politics. More importantly, Brute Force reminds us that although we survived one round of the Crypto Wars without actual controls on the use of cryptography, and indeed with some substantial relaxation of the export control regime that stood in the way of the routine adoption of strong crypto in many types of software, that result was not inevitable - and might again come under threat.
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