Jane Bambauer / Is Data Speech?
Any time the gov’t prevents you from knowing something forthe purpose of preventing you knowing it, the 1A is implicated: a negativeright to create knowledge.
Definitions: Intentionally recorded information is data;information is an objective representation of something that happened.Examples: handwritten notes, photos, server data.
How can server data be speech if no one has examined thedata? When gov’t regulates data, legal rules cluster around two lifecyclephases: data in transmission (diagram shows stick figure requesting data andother stick figure saying “sure,” which is clever and not entirely reflectiveof the less explicit transactions that gov’t tends to regulate) or data beingcollected. This data is so similar toother forms of celebrated speech that it isn’t a close issue. Data intransmission is speech in the case law.
What about collection? Strong strand of precedent treatscollection as nonspeech conduct. Mostscholars assume that collection can be regulated without 1A problems, andBambauer was one of them until recently. On reflection: Dietemann v. Time,Inc., involving a quack exposed by Lifemagazine; reporters surreptitiously recorded what was going on. 9th Cir. held reporters had 1A rightto report and observe, and even to publish the photos, but no 1A protection forsurreptitious recording of the photos/sound. That seems bizarre on reflection,though it’s how the cases lie. How canthe 1A shield the reporters’ minds and notes but not new tech that records andpreserves in a more reliable way? And how can transmission be speech while thecreation of the transmitted thing isn’t speech?
When the gov’t isn’t trying to prevent dissemination, it’strying to prevent creation of knowledge, which is troubling. Her position: A right to create knowledge:freedom from state action that purposefully interferes w/knowledge. Does the gov’t intentionally/purposefullyinterfere w/the creation of knowledge? If yes, scrutiny follows.
Borrows from a thought-centricframework, Seana Shiffrin. Hasn’tbeen applied to data privacy yet. Gov’t shouldn’t interfere with the creationof new thoughts; free speech makes no sense without that predicate right. Datahas uprooted bad ideas, like the idea that ulcers were caused by stress. Moneyball taught us that scouts don’thave an “eye” for talent. The belief that homo sapiens killed the other hominidshas been refuted by DNA evidence. Publicgood theories: self-interested demands to limit speech tend to overwhelm thepublic good. See that in dataprivacy—earlier article on this.
Deliberative democracy: others point to cases in whichspeech relating to public concern gets the most scrutiny; protection dropsoff. This isn’t a conception of the 1Ashe can get behind; limiting the scope of speech rights gives the gov’t theopportunity to decide what we should be concerned about. Even Brandeis wouldn’thave had such a narrow view of the 1A—was a great follower of John Dewey andthought that we all need customized, private self-education to bewell-informed. (Was that privacytort Brandeis or some other Brandeis?) Lending data seemed private but is now central to our understanding ofwhat happened in the housing crisis.
Self-determination/autonomy: privacy of course often seeksto promote exactly these same interest by giving us safety/security toexperiment. Julie Cohen’s vision forautonomy through privacy is here. She isvery concerned with these autonomy interests.
What the gov’t can do under her thesis: can protectimportant interests in seclusion and confidentiality; prohibit certain uses ofinformation even when a company knows something about its consumers—if there’ssomething wrong with a particular transaction, like discrimination.
Q: Dietemann: doesthe case come out differently if he was in an office rather than hishouse? Students think so. Is thatright? If so, isn’t it less of a datacollection case?
A: maybe, but the reason it’s right is that houses are relatedto seclusion interests. It’s not that the 1A doesn’t apply but that it might beoutweighed.
Q: are you arguing to only protect the collection of thedata or is it more important to disseminate it?
A: both important, independently
RT: If data is speech, then disclosure of data is forcedspeech. This has significantimplications. For example, from thepaper: “[The person whose data is collected], too, is free to gather data andmake judgments about the best creditor or best prospective mate.” The rich as well as the poor are free tosleep under bridges! Note also that this is not true: the corporation will beable to protect its privacy, and trade secrets, under the very right not todisclose that the claim of data as speech enables.
A: wants to think about compelled speech more; the doctrineis a mess. Can’t defend trade secret law; we need to fix that too.
RT: But fixing one and not the other has distributionalconsequences. Further from the paper: “generalizing based on categories …Without it, we must choose either arbitrariness or unconscious, unaccountablegeneralizations. There are no other options.” I worry about dichotomiespresented this way. I thought many complaints about “generalizing based oncategories” went to the way in which such generalizations are, in practice,arbitrary (redlining) and unaccountable (the camera points one way). Accountability is not a predicate for FirstAmendment protection by Bambauer’s theory. [Bambauer also posits that Big Data will have to be good because otherwiseit won’t work well—I have some questions about how to apply that promise to,say, the models that brought us securitized subprime lending and the resultingAAA-rated CDOs.]
A: we have lots of disclosure laws that pass scrutiny.Compelled speech doesn’t need to have the same breadth that the negative rightagainst interference w/knowledge creation would.
Q: if you support the intrusion claim, don’t you have todistinguish gathering and dissemination?
A: we have confidentiality rules and torts that do survivescrutiny; we’d do the same thing with intrusion.
Q: we’d have to redefine accounting law—a lot of laws aboutaccounting; securities disclosure. [Making you create data is interference with knowledge creation.] Isattorney-client privilege constitutional? Do we do strict scrutiny on each to keep them in place? Right now, a lawyer selling her client listwould be a major violation of the law, as would a doctor selling her list.
A: if it’s speech, we do the scrutiny, and a compellinginterest can win.
Q: but dozens of laws are on the rocks; the implications arefar broader than privacy laws. Underselling how sweeping this is.
A: links back to compelled speech. But no one’s telling you you can’t do wackyaccounting if you want. (Though you willgo to jail unless you use GAAP in various disclosures, at least if we putpeople in jail for accounting fraud any more.) Compelled speech doesn’t mean that the bookkeeper can’t also dosomething creative with the numbers.
Q: but that would often be fraud if it doesn’t reflectreality.
Q: maybe that would fall under prohibited uses of data.
Q: data isn’t mostly about privacy. Data is pervasive;business law is hugely about data. If narrow tailoring is required for anyregulation of data, that’s superbroad.
Wu: are you requiring strict scrutiny?
A: no.
Wu: well, the other moving part is the level ofscrutiny. You may be ending up with muchmore scrutiny than you intend—think about affirmatively suggesting forms ofscrutiny that don’t exist under 1A law. [Of course, Fred Schauer does thefoundational work on this issue of boundaries and expansion, and VincentBlasi’s pathological perspectiveis relevant as well.]
[So does this theory of what’s subject to strict scrutiny meanthat bans on marijuana based, at least in part, on claims that pot makes kidswilling to try other drugs—that is, it creates new thoughts about otherdrugs—are subject to scrutiny? I agree with Wu that level of scrutiny needsattention; the easy answer is that the harms of marijuana use are sufficienteven without that knowledge-based justification. But it’s generally possible to regulate froma harm perspective. E.g., from thepaper: “Even hostile work environment claims based on adverse insults andaggressive or provocative speech attempt to regulate based on the effects onthe victim rather than on the immorality of the speech itself.” I don’t findthis distinction persuasive, once you change the strawman word “immorality” to“discriminatory content”—I had this discussion with Felix Wu before.]
Anupam Chander and Uyen P. Le / The Free Speech FoundationsOf Silicon Valley
Le: Free speech helped create cyberlaw; the internet helpedrealize the vision of the First Amendment. The 1A as industrial policy. Wearen’t making the case for a new Lochnerism. By focusing on expressive core ofinternet, we hope to restrain any libertarian vision. Paper shows how the 1A helped configureAmerican cyberlaw: CDA §230, DMCA, and a bit on privacy. We look at currentthreats. SOPA/PIPA, operation In OurSites where civil forfeiture/seizure were used against alleged copyrightinfringement, turning into prior restraints. Global efforts to control the internet through the TPP, which alsopermits seizure/forfeiture and expands criminal copyright law/secondaryliability. Also the ITU, which recentlyconsidered proposals implicating speech—ability to identify speakers; relevanceof national security; possibility of charging for internet traffic so that thesender pays. These aren’t domestic laws, but the US could be given int’lobligations.
Chander: the 1A isn’t a trump. But its role as normativeforce hasn’t been recognized throughout cyberlaw. We’re also saying that it’s not the lonelyblogger that we first envision, but actually intermediaries, whose role hasn’tbeen recognized. Readers are important, and the ability to connect people comesfrom intermediaries. Disintermediationwas thought to be the role of the internet, but it turns out it’s reallyintermediaries, and cyberlaw is configured in recognition of their role, justas NYT v. Sullivan recognized therole of speech intermediaries. (See MarvinAmmori.)
Andrew Gilden: how does this account deal with Eldred and Golan?
Chander: Lessig et al. argue that speech interests shouldcause us to get rid of these extensions. SCt decided that the 1A wasn’t reallyat stake. We have a piece on Golan—much of the activism wasinternet-driven; the relationship to those cases is one we should think moreabout. Not ultimately central to what was happening on the internet. Activism bait, but not central to businessmodels.
RT: Talk to me about what Evgeny Morozov would say aboutinternet exceptionalism and people just wanting to keep government out of theirbusiness, using free speech as a bludgeon.
Chander: has a paper on Morozov’s last book—JasmineRevolutions. Morozov says people usethe internet for porn; they get distracted and don’t use it for more ennoblingpursuits. Extreme examples. He says thatif Burmese monks had the internet, they would’ve been less activeprotestors. His skeptical view isoverdramatized. We’re arguing not for exceptionalism but for realizing the 1A’spromise, one never realized by handbills or by the NYT. Internet doesn’tdeserve unique protections even though we should recognize its unique role.
John Tehranian & David Levine / It’ll Break Your HeartEvery Time: Baseball, the Internet and Romanticism
Tehranian: When you look at Floodv. Kuhn, SCt gives absurdly detailed history of the game; case involveda player who didn’t want to be traded. SCt had to decide whether baseballcontinued to have an antitrust exemption. Yet the decision doesn’t discuss thehistory of labor relations in the game, or race relations, setting up thedenial of his claim. Delegitimizes Floodthrough its analysis, while ignoring the change in “commerce” that had occurredduring the period; the old precedent about the antitrust exemption came from avery different constitutional order, but the Court didn’t recognize that.Highlighted his high salary, not his claims for the exploitation of his labor.
Levine: same romanticism in Citizens United. Court has equally romantic statements about theinternet as in baseball. Core of majority opinion waxes poetic about internet’sability to balance speech playing field right now. (So Evgeny Morozov does have a point, eh?) That’s not true given the realities of political campaigning. The Courtassumes a level playing field—a blog post can be as effective as a corporatemedia buy. They say they don’t want to hurt the progress of the internet bydenying it the ability to seek its fruition by balancing corporate speech.Prompt disclosure provides citizens with the information needed to holdcorporations and politicians accountable. As someone who writes about gov’t andprivate secrecy, he’s highly dubious.
Both baseball and internet are held up as great for thecountry, but SCt views them through rose-colored glasses.
Tehranian: romanticism invites a failure of imagination. TheCourt held that baseball absolutely needed the reserve clause, preventing freeagency, and therefore needed the antitrust exemption to protect the integrityof the game. Proven unequivocally untrue when baseball was forced into freeagency. During the 1980s, baseball had more competitive balance than indecades; revenues exploded. The romanticization/desire not to change can leadto blind adherence to precedent or flagrant disregard of precedent.
Q: is this something you expect to find whenever the SCtdoes something flagrantly wrong? Youthink the SCt is wrong and reasoning screwily; aren’t those likely to becorrelated? (Compare DanKahan’s Harvard Forward and theresponses toit.)
Levine: courts tend to play around with claims about theinternet; maybe these results would happen anyway. But to the extent we havedata available and used in ways that are irrelevant or ignored, we have aparallel.
Tehranian: true, could argue this whenever you think theCourt is wrong. Interestingly, Flook’sdeference contrasts with Roe v. Wadeand other contemporaneous decisions—deference is strange.
Gilden: romanticism may be inherent to how you makearguments as lawyer and judge—offer a steady state that needs protection. It’sindeterminate: you can make romantic arguments on both sides of same-sexmarriage.
Tehranian: fair enough—need to ferret out strategic use tosell a decision v. an actual explanation. Flookinvolved Justice Blackmun really, really believing in the narrative he offered.
Luna: to what extent are you observing the cause or aneffect covering for another cause that is less easily observable? Would beuseful if you specified a bit more what kinds of values you would include asromanticism. Are you thinking ofparticular ideologies? Conservatism? Tradition?
Ochoa: the story of the Founders is romanticism—anyreference to Founders’ intent could be read that way. Skeptical that you’ve identified somethingunique; they ignore data all the time.
Joseph A. Tomain / Online Privacy: First Amendment Analysisof an Opt-In Regime
Problem with proliferation of ads and marketing on andoffline. Current proposals—European DataProtection regulation; FTC proposals.
Are current online data collection practicesmisleading? He thinks so. Is the gov’tinterest substantial? Yes, individualprivacy. An opt-in requirement directlyadvances the gov’t interest, and not more extensive than necessary since onlinedata collection is still permissible.
Sorrell: lawburdens disfavored speech by disfavored speakers—that can’t possibly be rightif commercial speech doctrine survives. Court said that detailers/pharmacoshave a right to communicate in an effective and informative manner—but doesthat give you a right to reach people you don’t otherwise reach? Not workable. Also, are these communications even informative? Tamara Piety’s Brandishing the First Amendmentdistinguishes between information and propaganda. Default rule should comport with thepreferences of most people—opt-in before data collected. Prior cases have givensurprisingly little attention to opt-out v. opt-in—opt-out was more historicalaccident than purposive.
Sorrell could beimpediment to opt-in regime, but shouldn’t be under Knox v. SEIU which allows it.
Ochoa: why is this speech? Facts are in the public domain for copyright, anyone can copy them. Is collecting facts speech?
A: he thinks so, when Google uses my search to present ads.
Ochoa: if collecting data isn’t speech, you don’t need a 1Aanalysis.
Bambauer: this is automatic, not really “collection.”Opt-out is really data destruction. Notabout collection, but data that is use-restricted.
Q: information is not itself harmful—people can perceivetheir best informations if they’re well informed. Sorrellsays it’s about the benefit of consumers.
A: Va. Pharmacywas about drug price ad. Sorrellwasn’t about consumers; it was about providing info to marketers.
Q: but Sorrell waspremised on the idea that information (not the data transmitted between theparties, but rather other information related to their data) would get toconsumers. The real issue is the ability of consumers to make choices; you canconstrain the availability of information at the point of collection.
A: difference between info and propaganda: marketers aren’ttelling me stuff in my best interests.
Q: so you’re comfortable w/gov’t drawing line betweenpersuasion and propaganda?
A: I have problems with large private actors making thosedecisions too.
RT: Re: misleadingness—if misleading, can be bannedoutright; careful about the standard for what counts as misleading. Also note LaurenWillis’s important work on companiessecuring opt-ins through clever design.
Q: Europeans don’t allow monopolists or people w/marketpower to count as opt-in consent. But DCand 10th Circuits go in opposite ways on opt-ins; DC in Transunion v. FTC held that opt-in wasjust fine, while 10th held it was unconstitutional.
Q: Consider costs to people who don’t value their privacy.
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