Author: Daniel Solove


Harvard Law Review Privacy Symposium Issue

The privacy symposium issue of the Harvard Law Review is hot off the presses.  Here are the articles:

Introduction: Privacy Self-Management and the Consent Dilemmas
Daniel J. Solove

What Privacy is For
Julie E. Cohen

The Dangers of Surveillance
Neil M. Richards

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures
Paul M. Schwartz

Toward a Positive Theory of Privacy Law
Lior Jacob Strahilevitz


Privacy Self-Management and the Consent Dilemma

I’m pleased to share with you my new article in Harvard Law Review entitled Privacy Self-Management and the Consent Dilemma, 126 Harvard Law Review 1880 (2013). You can download it for free on SSRN. This is a short piece (24 pages) so you can read it in one sitting.

Here are some key points in the Article:

1. The current regulatory approach for protecting privacy involves what I refer to as “privacy self-management” – the law provides people with a set of rights to enable them to decide how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data. Unfortunately, privacy self-management is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control over personal data.

2. Empirical and social science research has undermined key assumptions about how people make decisions regarding their data, assumptions that underpin and legitimize the privacy self-management model.

3. People cannot appropriately self-manage their privacy due to a series of structural problems. There are too many entities collecting and using personal data to make it feasible for people to manage their privacy separately with each entity. Moreover, many privacy harms are the result of an aggregation of pieces of data over a period of time by different entities. It is virtually impossible for people to weigh the costs and benefits of revealing information or permitting its use or transfer without an understanding of the potential downstream uses.

4. Privacy self-management addresses privacy in a series of isolated transactions guided by particular individuals. Privacy costs and benefits, however, are more appropriately assessed cumulatively and holistically — not merely at the individual level.

5. In order to advance, privacy law and policy must confront a complex and confounding dilemma with consent. Consent to collection, use, and disclosure of personal data is often not meaningful, and the most apparent solution – paternalistic measures – even more directly denies people the freedom to make consensual choices about their data.

6. The way forward involves (1) developing a coherent approach to consent, one that accounts for the social science discoveries about how people make decisions about personal data; (2) recognizing that people can engage in privacy self-management only selectively; (3) adjusting privacy law’s timing to focus on downstream uses; and (4) developing more substantive privacy rules.

The full article is here.

Cross-posted on LinkedIn.


Copyright’s Constitutional Chameleon

by John Duffy, Peter Strauss and Michael Herz

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime.  The White House responded by promising to seek legislation to overturn the Librarian’s rule.  That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views.  See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this:  The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts. Read More


Last Call for Contracts Survey






Contracts teachers are asked to complete a brief online survey to help the planning and execution of a symposium Washington Law Review is preparing to host on the exciting new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012).

This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks.  In addition to an article by Prof. Cunningham, the WLR will publish in its December 2013 issue  a half dozen pieces by many luminaries and notables, including:

Charles Knapp (NYU/Hastings)

Brian Bix (Minnesota)

Erik Gerding (Colorado)

Jake Linford (Florida State)

Jennifer Taub (Vermont)

To help these scholars and WLR editors with this effort, please fill out the online survey today!



New Titles from NYU Press

Here are some recent titles from NYU Press:

Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge

Marjorie Heins


Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

Andrew Guthrie Ferguson


Up Against a Wall: Rape Reform and the Failure of Success

Rose Corrigan


What Is Parenthood? Contemporary Debates about the Family

Edited by Linda C. McClain and Daniel Cere


The New Kinship: Constructing Donor-Conceived Families

Naomi R. Cahn


Lawless Capitalism: The Subprime Crisis and the Case for an Economic Rule of Law

Steven A. Ramirez

Neoconservative Politics and the Supreme Court: Law, Power, and Democracy

Stephen M. Feldman


Punishing Immigrants: Policy, Politics, and Injustice

Edited by Charis E. Kubrin, Marjorie S. Zatz and Ramiro Martínez, Jr.

Please check out the above books. You can propose a review of one of these books or another recent title not on the list. We’re aiming for reviews between 500 – 1500 words, ideally about 1000 words. Please email your proposals to me.


New Titles from Oxford University Press

OUPHere are some new titles from Oxford University Press. If you’re interested in reviewing a book, please let me know and tell me a bit about your background. If I select you as a reviewer for the book, Oxford University Press will send you a free review copy.


Louis Michael Seidman, On Constitutional Disobedience


Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage


Ganesh Sitaramanm The Counterinsurgent’s Constitution: Law in the Age of Small Wars


J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance  


Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance   


Stephen J. Schulhofer, More Essential than Ever: The Fourth Amendment in the Twenty First Century


Daniel Kanstroom, Aftermath: Deportation Law and the New American Diaspora


G. Edward White, Law in American History: Volume 1: From the Colonial Years Through the Civil War


Gary Rosen, Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein


George Fletcher’s Essays on Criminal Law (Edited by Russell Christopher)


Albert W. Dzur, Punishment, Participatory Democracy, and the Jury


Harvard Law Review Symposium on Privacy & Technology

This Friday, November 9th, I will be introducing and participating in the Harvard Law Review’s symposium on privacy and technology.  The symposium is open to the public, and is from 8:30 AM to 4:30 PM at Harvard Law School (Langdell South).

I have posted a draft of my symposium essay on SSRN, where it can be downloaded for free.  The essay will be published in the Harvard Law Review in 2013.  My essay is entitled Privacy Self-Management and the Consent Paradox, and I discuss what I call the “privacy self-management model,” which is the current regulatory approach for protecting privacy — the law provides people with a set of rights to enable them to decide for themselves about how to weigh the costs and benefits of the collection, use, or disclosure of their data. I demonstrate how this model fails to serve as adequate protection of privacy, and I argue that privacy law and policy must confront a confounding paradox with consent.  Currently, consent to the collection, use, and disclosure of personal data is often not meaningful, but the most apparent solution — paternalistic measures — even more directly denies people the freedom to make consensual choices about their data.

I welcome your comments on the draft, which will undergo considerable revision in the months to come.  In future posts, I plan to discuss a few points that I raise my essay, so I welcome your comments in these discussions as well.

The line up of the symposium is as follows:

Symposium 2012:
Privacy & Technology

Daniel J. Solove
George Washinton University
“Introduction: Privacy Self-Management and the Consent Paradox”

Jonathan Zittrain
Harvard Law School

Paul Schwartz
Berkeley Law School
“The E.U.-U.S. Privacy Collision”

Lior Strahilevitz
University of Chicago
“A Positive Theory of Privacy”

Julie Cohen
Georgetown University
“What Privacy is For”

Neil Richards
Washington University
“The Harms of Surveillance”

Danielle Citron
University of Maryland

Anita Allen
University of Pennsylvania

Orin Kerr
George Washington University

Alessandro Acquisti
Carnegie Mellon University

Latanya Sweeney
Harvard University

Joel Reidenberg
Fordham University

Paul Ohm
University of Colorado

Tim Wu
Columbia University

Thomas Crocker
University of South Carolina

Danny Weitzner


Introducing Guest Blogger Omer Tene

I’m delighted to introduce as a guest blogger Professor Omer Tene, who is an Associate Professor at the College of Management School of Law, Rishon LeZion, Israel, currently visiting at the Berkeley Center for Law and Technology. Omer writes about privacy and data protection law. His recent articles concern issues such as the challenges posed to the privacy framework by “big data”; online behavioral advertising and the “do-not-track” initiative; government access to private sector data; and privacy and digital identity in the social networking context.

In addition to his research, Omer serves as rapporteur to the OECD for its review of its 1980 Privacy Guidelines. He consulted the Government of Israel in its application for an adequacy decision under the European Data Protection Directive. He headed the Steering Committee for the 32nd Annual Conference of Privacy and Data Protection Commissioners.

Omer is also an Affiliate Scholar at the Stanford Center for Internet and Society; a Senior Fellow at the Future of Privacy Forum; and a member of the Editorial Board of International Data Privacy Law (Oxford University Press).

Omer tweets at and blogs at

His SSRN page is here.   His recent publications include:

Omer Tene, Systematic Government Access to Private-Sector Data in Israel, __ International Data Privacy Law __ (forthcoming 2012).

Omer Tene & Jules Polonetsky, Privacy in the Age of Big Data: A Time for Big Decisions, 64 Stan. L. Rev. Online 63 (2012).

Omer Tene, Me, Myself and I: Aggregated and Disaggregated Identities on Social Networking Services, __ J. Int’l Comm. L. & Tech. __ (forthcoming Fall 2012)

Omer Tene & Jules Polonetsky, To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising, 13 Minn. J. L. Sci. & Tech. 281 (2012).