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This project is about the discourses of privacy and privacy law. It constructs the landscape of privacy discourse, where it has been, where it is going, and who it empowers along the way. Based on primary sources research, the project argues that the changing discourse around privacy is shifting power over our data from the field of law to the terrain of technology, thereby weakening substantive privacy protections for individuals.
The dominant discourse of privacy today, often called “notice and consent”, is explicitly neoliberal. This regime has been roundly criticized by privacy scholars as a failure. And yet, for all its faults, notice-and-consent always made sense from a sociological or phenomenological perspective. That is, it was inadequate yet scrutable; because of the latter, we determined the former. Neoliberal privacy law is ineffective, but it was always accessible and open for interrogation from the ground up. That inadequate, yet relatable discourse, however, is now losing ground to the inscrutable, unaccountable discourse of technology designers. The same neoliberal social, political, and legal forces, superpowered by more advanced technology and a more powerful technologist profession, are shifting privacy law discourse from accessible concepts like choice to inaccessible computer code, from something regulators could interrogate to the “black box” language of technology. The discourse of privacy law and, thus, power over its translation into practice, resides in the design team, where engineers, supervised by other engineers, make consequential choices about how, if at all, to interpret the requirements of privacy law and integrate them into the code of technologies they create. Based on primary source research, this project argues that the code-based discourse of engineers is gaining hegemonic power in privacy law, thereby defining privacy law and what it means in practice, stacking the deck against robust privacy protections, and undermining the promise of privacy laws already passed.
Ari Ezra Waldman is CITP’s 2019-20 Microsoft Visiting Professor of Information Technology Policy. Ari is a professor of law and the founding director of the Innovation Center for Law and Technology at New York Law School. He is also an affiliate fellow of the Information Society Project at Yale Law School.
Ari researches how law and technology mediate social life, with particular focus on privacy, technology design, online speech, and the experiences of marginalized populations. He has won numerous awards for his scholarship, including twice winning the highest award in privacy law, the Best Paper Award at the Privacy Law Scholars Conference (in 2019 and in 2017), the 2019 Privacy Papers for Policymakers Award, the 2018 Deirdre G. Martin Memorial Lecturer on Privacy, and the Otto L. Walter Distinguished Writing Award (2016 and 2019). His first book, Privacy As Trust: Information Privacy for an Information Age (Cambridge University Press 2018), argues privacy law should protect as private information shared in contexts of trust. His scholarship has been or will soon be published in leading law reviews including the Washington University Law Review (twice), the Cornell Law Review, the Iowa Law Review, the Indiana Law Journal, and the Fordham Law Review, among others, and in peer-reviewed journals such as Law and Social Inquiry.
Ari sits on the Board of Directors of the Cyber Civil Rights Initiative, an organization raising awareness about and fighting nonconsensual pornography and online victimization, and serves on the Advisory Board of the Electronic Privacy Information Center (EPIC), a leading privacy advocacy group based on Washington, D.C.
He holds a Ph.D. in sociology from Columbia University, a J.D. from Harvard Law School, and an A.B., magna cum laude, from Harvard College.
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