Is data speech?

Stanford Law Review

Volumn 66, Issue 1, 2014, Pages 57-120

  Bambauer, Jane ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 84893417051     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (460)

1. United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting).
2. It is, as Gregory Bateson has put it, "a difference which makes a difference. "
3. Gregory Bateson, Steps to an Ecology of Mind 453 (1972) (emphasis omitted).
4. 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").
5. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
6. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
7. 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. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).
8. If Congress is careful, this could be crafted in a viewpoint-neutral way since all researchers, regardless of their beliefs about global warming, would be burdened by the regulation.
9. Mark Bittman, Op-Ed., Who Protects the Animals?, N.Y. Times Opinionator (Apr. 26, 2011, 9:29 PM), http://opinionator.blogs.nytimes.com/2011/04/26/who-protectsthe-animals (coining the term "ag-gag"); see also Utah Code Ann. § 76-6-112 (LexisNexis 2013) (defining the crime of "agricultural operation interference").
10. 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").
11. For a thorough discussion of the First Amendment implications of this and similar card-counting statutes, see Adam Kolber, Card Counting and Freedom of Thought 1, 5 (May 29, 2013) (unpublished manuscript) (on file with author).
12. Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) ("It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of 'speech' that the First Amendment protects. ").
13. Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) ("It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of 'speech' that the First Amendment protects. ").
14. Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended at scattered sections of 18, 26, 29, and 42 U.S.C.).
15. Do-Not-Track Online Act of 2011, S. 913, 112th Cong. (2011).
16. 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
17. White House, Consumer Data Privacy in A Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (2012) [hereinafter White House Privacy Report], available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf;
18. Jasmin Melvin, "Do Not Track" Internet Spat Risks Legislative Crackdown, Reuters (July 23, 2012, 4:08 PM EDT), http://www.reuters.com/article/2012/07/23/us-internet-trackingidUSBRE86M17R20120723. The FTC's involvement in industry-wide talks about a voluntary "Do Not Track" option may be an example of what Derek Bambauer has called "soft censorship."
19. Derek E. Bambauer, Orwell's Armchair, 79 U. Chi. L. Rev. 863, 867 (2012).
20. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
21. Shubha Ghosh, Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment (Univ. of Wis. Law Sch. Legal Studies Research Paper Series, Paper No. 1189, 2012), available at http://ssrn.com/abstract=2000102.
22. Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856, 875-76 (2012).
23. Tim Wu, Op-Ed., Free Speech for Computers?, N.Y. Times (June 19, 2012), http://www.nytimes.com/2012/06/20/opinion/free-speech-for-computers.html. Of course, by this logic, books cannot be speech either because they, too, are not persons.
24. Agatha M. Cole, Internet Advertising After Sorrell v. IMS Health: A Discussion on Data Privacy & the First Amendment, 30 Cardozo Arts&Ent. L.J. 283, 310-12 (2012) (finding that Sorrell does not constrain "Do Not Track" legislation because the proposed law does not restrict "expressive uses of data").
25. Justice Holmes, the chief architect of modern First Amendment law, cautioned the courts against using policy considerations as their gauge. A passage from his heralded dissent in Abrams v. United States succinctly captures the dangers of this approach: "Persecution for the expression of opinions seems to me perfectly logical. " 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (emphasis added).
26. Fred Cate and Robert Litan began to explore the First Amendment application to personal information, but concluded their work with a series of open questions. Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 Mich. Telecomm. & Tech. L. Rev. 35, 57-58 (2002). Eugene Volokh warned that the rush to regulate information in the name of privacy will conflict with the First Amendment, but he starts with the presumption that data privacy laws burden speech.
27. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 Stan. L. Rev. 1049 (2000). Volokh also limits his analysis to restrictions on the communication of information, and does not comment on the process of gathering data in the first place.
28. Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335 (2011).
29. 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.
30. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53Duke L.J. 967 (2003).
31. Trademark protection, based on theories of dilution, can also disrupt the spread of accurate information.
32. Rebecca Tushnet, Trademark Law as Commercial Speech Regulation, 58 S.C. L. Rev. 737, 738-39 (2007).
33. Louis Brandeis, famous for his protection of speech, was also a champion for the right to be let alone-the right to have a sufficient amount of breathing space and respite from social judgment. This right was, to Brandeis, a necessary component of liberty.
34. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890). I too have endorsed the right to seclusion, and believe it can and should pass constitutional scrutiny in some contexts.
35. Jane Yakowitz Bambauer, The New Intrusion, 88 Notre Dame L. Rev. 205 (2012). However, as Burt Neuborne pointed out over twenty years ago, when the government uses information regulations to socially engineer a desired outcome, it runs the risk of "selective manipulation of information as a tool of social control. "
36. Burt Neuborne, The First Amendment and Government Regulation of Capital Markets, 55 Brook. L. Rev. 5, 35 (1989).
37. Marc Blitz, motivated by the values of projects like Google Earth, proposes a similar test to protect the right to create maps.
38. Marc Jonathan Blitz, The Right to Map (and Avoid Being Mapped): Reconceiving First Amendment Protection for Information-Gathering in the Age of Google Earth, 14 Colum. Sci. & Tech. L. Rev. 115, 121-24, 202 (2012).
39. Ettore v. Philco Television Broad. Corp., 229 F.2d 481, 485 (3d Cir. 1956).
40. 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). John R. Pierce, An Introduction to INFORMATION Theory: Symbols, Signals, and Noise 8 (2d rev. ed. 1980).
41. A recording of the person who yells it, however, would be a factual representation of what was said, by whom, and how.
42. The Data Deluge, Economist (Feb. 25, 2010), http://www.economist.com/ node/15579717.
43. 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.
44. Marc Cohen, How the Web Works-in One Easy Lesson, Marc'S Space (Mar. 13, 2011), http://mkcohen.com/how-the-web-works-in-one-easy-lesson.
45. Derek E. Bambauer, Orwell's Armchair, 79 U. Chi. L. Rev. 863, 867 (2012).
46. Marc Jonathan Blitz, Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information, 74 UMKC L. Rev. 799 (2006) (promoting an independent First Amendment right to receive information);
47. Christina E. Wells, Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court's First Amendment Jurisprudence, 32 Harv. C.R.-C.L. L. Rev. 159, 172 (1997) (identifying distinct speaker-centric and listenercentric lines of cases).
48. Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. Cal. L. Rev. 49, 61-62 (2000).
49. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004).
50. 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 Congress seeks to forbid.
51. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
52. 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.
53. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41 (1974).
54. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 268 (1964) (citing and accepting earlier precedent). At other times, the Supreme Court suggests that defamatory speech does receive direct protection, albeit relaxed protection in light of the low value of the speech. N.Y. Times, 376 U.S. at 273 ("If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. ").
55. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the members of a divided Court endorsed both interpretations in their fractured opinions. Compare id. at 769-70 (White, J., concurring in the judgment) (suggesting that defamatory speech receives only derivative protection), with id. at 775-76 (Brennan, J., dissenting) (suggesting that defamatory speech receives direct protection).
56. Robert Post makes a similar argument that speech protection does not usually apply to regulations of speech. He supports the claim using the example of an American Dental Association rule that prohibits dentists from telling their patients their opinions about the dangers of dental amalgams and from persuading their patients to have their amalgam fillings removed. Post does not reflect on the fact that the rule is promulgated by a licensing board whose functional purpose is to regulate the practice of dentistry. A dentist's ability to practice dentistry is tied to certain acts or omissions that are required to comply with licensing privileges. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (upholding speech restrictions on abortion providers on the basis of reasonable licensing requirements). The other way to look at this, of course, is that Post labors to make sense of a speech restriction that doesn't deserve to be saved. This may be an inappropriate and unconstitutional condition on a government licensing benefit.
57. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004).
58. The Sherman Antitrust Act defines criminal behavior in terms of contract. See 15 U.S.C. § 1 (2012).
59. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004).
60. Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances, " and the Uncharted Zones, 90 Cornell L. Rev. 1277 (2005).
61. Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729 (2011).
62. United States v. Stevens, 559 U.S. 460 (2010).
63. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).
64. United States v. Alvarez, 132 S. Ct. 2537 (2012).
65. Stevens, 559 U.S. at 479 (second alteration in original).(internal quotation mark omitted).
66. Cohen v. California, 403 U.S. 15, 25 (1971) (internal quotation mark omitted).
67. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996).
68. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996).
69. 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 Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 Pepp. L. Rev. 427 (2009).
70. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
71. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004).
72. Matt Ridley, The Rational Optimist: How Prosperity Evolves 160 (2010).
73. 131 S. Ct. 2653 (2011).
74. 131 S. Ct. 2653 (2011).
75. 131 S. Ct. 2653 (2011).
76. 131 S. Ct. 2653 (2011).
77. 131 S. Ct. 2653 (2011).
78. This is not the first time Justice Kennedy exhibited some misgivings about granting databases complete constitutional protection. A decade earlier, Justice Kennedy wanted to grant certiorari in a case that would have allowed the Court to consider whether the FCRA violated the First Amendment. Justice Kennedy hoped the Court would consider whether accumulations of consumer data constituted speech. Trans Union LLC v. Fed. Trade Comm'n, 536 U.S. 915, 916 (2002) (Kennedy, J., dissenting from denial of certiorari).
79. 245 F.3d 809 (D.C. Cir. 2001), cert. denied, 536 U.S. 915.
80. 245 F.3d 809 (D.C. Cir. 2001), cert. denied, 536 U.S. 915.
81. (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). In Trans Union, the "credit reports" were actually marketing lists that were created in part based on information that would be available only to creditors and credit reporting agencies. This type of document falls within the FCRA's definition of "consumer report. "
82. 182 F.3d 1224 (10th Cir. 1999).
83. 47 U.S.C. § 222 (2011).
84. 47 U.S.C. § 222 (2011).
85. 47 U.S.C. § 222 (2011).
86. 47 U.S.C. § 222 (2011).
87. U.S. West, Inc., 182 F.3d at 1239-40.
88. U.S. West, Inc., 182 F.3d at 1239-40.
89. Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 582-83 (1983).
90. Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (finding that a restriction on the distribution of attorney solicitations via mail is a burden on speech, but that it withstands scrutiny).
91. Young v. Am. Mini Theatres, Inc., 427 U.S. 50 (1976) (finding that zoning laws requiring that adult motion picture theaters maintain a certain distance between themselves only incidentally burdened speech).
92. Frederick Schauer, Cuban Cigars, Cuban Books, and the Problem of Incidental Restrictions on Communications, 26 Wm. &Mary L. Rev. 779 (1985).
93. Restrictions on data might, thus, automatically fail the "unrelated[ness]" rule set out in Buckley v. Valeo, 424 U.S. 1, 18 (1976).
94. Rubin v. Coors Brewing Co., 514 U.S. 476, 478 (1995) (holding that a federal law prohibiting beer labels from displaying alcohol content violated the First Amendment).
95. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976) (holding that a state law prohibiting pharmacies from advertising prescription drug prices violated the First Amendment).
96. 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.
97. 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.
98. The reporting of research findings is also given the protection of speech. See Bd. of Trs. of Leland Stanford Junior Univ. v. Sullivan, 773 F. Supp. 472, 479 (D.D.C. 1991).
99. Va. State Bd. of Pharmacy, 425 U.S. at 764.
100. Va. State Bd. of Pharmacy, 425 U.S. at 764.
101. Chi. Joint Bd. v. Chi. Tribune Co., 435 F.2d 470 (7th Cir. 1970).
102. Chi. Joint Bd. v. Chi. Tribune Co., 435 F.2d 470 (7th Cir. 1970).
103. Bigelow v. Virginia, 421 U.S. 809 (1975).
104. Bigelow v. Virginia, 421 U.S. 809 (1975).
105. Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (finding that the First Amendment protects the right to receive literature).
106. Michael C. McFarland, Intellectual Property, Information, and the Common Good, B.C. Intell. Prop. & Tech. F. (June 5, 1999), http://www.bc.edu/bc_org/avp/ law/st_org/iptf/resources/index.html.
107. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991).
108. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991).
109. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981) (internal quotation mark omitted).
110. 471 U.S. 539, 556 (1985) (alteration in original)
111. Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 203 (2d Cir. 1983) (internal quotation marks omitted).
112. More recently, though less forcefully, the Court noted the First Amendment limitations on the government's attempt to restrict the communication of facts in Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Scholars, too, have argued that the First Amendment is at least partly responsible for defining the boundaries of copyright.
113. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 440 (1999);
114. Alan E. Garfield, The Case for First Amendment Limits on Copyright Law, 35 Hofstra L. Rev. 1169, 1173 (2007).
115. Other case outcomes are consistent with this understanding. The court in Barclays Capital Inc. v. Theflyonthewall. com, Inc., 650 F.3d 876 (2d Cir. 2011), for example, found that the Copyright Act preempted the plaintiff's claim for hot news appropriation in part to advance First Amendment values that ensure no one person will have control over the knowledge of newsworthy events. But note that it protected the company's right to "break" the news it had gathered and was silent as to the First Amendment protection of the gathering itself.
116. 17 U.S.C. §§ 1201(a)(2), (b)(1) (2012).
117. 273 F.3d 429, 435-36 (2d Cir. 2001).
118. 273 F.3d 429, 435-36 (2d Cir. 2001).
119. 273 F.3d 429, 435-36 (2d Cir. 2001).
120. Contrasting the facts before it with Commodity Futures Trading Commission v. Vartuli, 228 F.3d 94, 111 (2d Cir. 2000, which found that code combined with instructions and encouragement to run the program was regulable nonspeech). Criminal prohibitions of tax shelters draw a similar distinction between political advocacy and encouragement to commit unlawful behavior.
121. United States, v. Raymond, 228 F.3d 804 (7th Cir. 2000), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013).
122. However, the difference between these two is razor thin-as thin as a difference in intent.
123. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
124. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
125. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
126. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
127. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
128. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
129. Dietemann v. Time, Inc., 449 F.2d 245, 245 (9th Cir. 1971).
130. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
131. Geoffrey R. Stone, Flag Burning and the Constitution, 75 Iowa L. Rev. 111, 114-15 (1989) (highlighting this difficulty in the context of flag burning).
132. This unrestrained right of the journalists to report what they had observed may have its roots in Sidis v. F-R Pub. Corp., 113 F.2d 806 (2d Cir. 1940), a curious case that embedded a right to report information surreptitiously collected by undercover journalists into the American common law without explicitly referencing the First Amendment.
133. Samantha Barbas, The Sidis Case and the Origins of Modern Privacy Law, 36 Colum. J.L. &Arts 21 (2012).
134. Dietemann, 449 F.2d at 249.
135. Recording and communications technologies, starting with spoken language itself, have become critical to the human experience because they enhance what Tyler Burge calls "substantive content memory. "
136. Tyler Burge, Memory and Persons, 112 Phil. Rev. 289, 289 (2003).
137. Bartnicki v. Vopper, 532 U.S. 514, 526-31 (2001) (finding that a radio station's broadcast of newsworthy recordings that it knew were recorded via an illegal wiretap received First Amendment protection, while suggesting that the person who made the illegal recordings could be prosecuted without the same scrutiny).
138. 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.
139. 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.
140. Cal. Penal Code § 631-32 (West 2013).
141. Conn. Gen. Stat. § 52-570d(a) (2013).
142. Fla. Stat. § 934.03 (2013).
143. 720 Ill. Comp. Stat. 5/14-2 (2013).
144. Md. Code Ann., Cts. & Jud. Proc. § 10-402 (LexisNexis 2013).
145. Mass. Gen. Laws ch. 272, § 99 (2012).
146. Mich. Comp. Laws § 750.539c (2013).
147. Mont. Code Ann. § 45-8-213 (2013).
148. N.H. Rev. Stat. Ann. § 570-A:2 (2013).
149. 18 Pa. Cons. Stat. § 5704 (2012).
150. Wash. Rev. Code § 9.73.030 (2013).
151. Pineda v. Williams-Sonoma Stores, Inc., 246 P.3d 612, 616 (Cal. 2011).
152. 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
153. White House, Consumer Data Privacy in A Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (2012) [hereinafter White House Privacy Report], available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf;
154. White House, Consumer Data Privacy in A Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (2012) [hereinafter White House Privacy Report], available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf;
155. The division between information and information gathering is Neil Richards's sole basis for his conclusion that privacy laws do not implicate the First Amendment. Richards notes that the distinction can cause problems at the extreme, but he does not regard these problems to be unavoidable. "One can imagine science fiction-style hypotheticals that would bring information collection rules within this doctrine-for example, a law forbidding the keeping of records or outlawing cameras. "
156. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
157. 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.
158. Charles Woodworth, How Photographic Film Works, How Stuff Works, http://electronics.howstuff works.com/film7.htm (last visited Dec. 18, 2013).
159. Brad Lendon, Miami "Zombie" Attack Video: Footage Shows Entire Attack by Rudy Eugene on Ronald Poppo, Police Say, WPTV. com (May 31, 2012), http://www.wptv.com/dpp/news/news_archives/miami-zombie-attack-video-footage-showsentire-attack-by-rudy-eugene-on-ronald-poppo-police-say.
160. Porat v. Lincoln Towers Cmty. Ass'n, No. 04 Civ. 3199(LAP), 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005)
161. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 568 (1995), aff'd, 464 F.3d 274 (2d Cir. 2006).
162. Texas v. Johnson, 491 U.S. 397, 404 (1989). However, both of these cases assessed whether actions that would otherwise be conduct were sufficiently expressive to receive First Amendment protection. Regulation of a photograph, or a database, is not concerned with the conduct required to create the record; it is the record itself at issue. Attempts to ban photography or the collection of data have nothing to do with the acts that were necessary to collect the information and have everything to do with the content of the information itself.
163. 2005 WL 646093, at *4-5
164. Hurley, 515 U.S. at 568.
165. Hurley, 515 U.S. at 568.
166. Carson v. Cnty. of Stanislaus, No. 1:10-cv-02133-OWW-SMS, 2011 WL 1532533, *1-3 (E.D. Cal. Apr. 20, 2011) (dismissing the First Amendment claim because an inference about a particularized message could not be drawn from a lawyer's attempt to take a photograph of a district attorney investigator).
167. Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965, 979-80 (N.D. Ind. 2010) (finding that a father's attempt to video record his daughter's choir concert does not communicate an idea for First Amendment purposes).
168. 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 Beau Lambert, who took his video camera to downtown Des Moines in the hopes of filming something newsworthy. After he got his wish and filmed a fatal brawl in the streets, he successfully used the First Amendment to demand the return of his confiscated videotape. Lambert v. Polk Cnty., 723 F. Supp. 128, 130-31, 133, 135 (S.D. Iowa 1989).
169. Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam).
170. Rumsfield v. Forum for Academic & Institutional Rights, 547 U.S. 47, 65-66 (2006) (holding that if an observer cannot understand the message of some particular conduct without additional explanation, that is "strong evidence" that the conduct is not "inherently expressive");
171. Charles C. Haynes, et al., First Amendment Ctr., The First Amendment in Schools 77 (2003).
172. Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam).
173. Texas v. Johnson, 491 U.S. 397, 404 (1989). However, both of these cases assessed whether actions that would otherwise be conduct were sufficiently expressive to receive First Amendment protection. Regulation of a photograph, or a database, is not concerned with the conduct required to create the record; it is the record itself at issue. Attempts to ban photography or the collection of data have nothing to do with the acts that were necessary to collect the information and have everything to do with the content of the information itself.
174. Smith v. Goguen, 415 U.S. 566 (1974) (avoiding a decision on the First Amendment interest in sewing a flag to the seat of one's trousers).
175. C. Edwin Baker specifically addresses the First Amendment protections of a diary (as well as solving a problem or singing out loud alone).
176. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 993 (1978). Martin Redish also insists the First Amendment must cover the keeping of a diary.
177. Martin H. Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory, Crim. Just. Ethics, Summer/Fall 1992, at 29, 30-31. Naturally, Seana Shiffrin, whose theory of a thinker-based First Amendment forms the backbone for my proposal here, also agrees that "diaries and other forms of discourse meant primarily for selfconsumption" should indisputably be within the scope of speech protections.
178. Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 Const. Comment. 283, 285 (2011). To save the speech value of a diary, the rule at the very least must be modified so that the intended audience can be the author himself. With this modification, the photo hobbyist should have access to First Amendment protections, too. Moreover, the limit can be avoided through tricks. A photographer can meet the threshold by alleging that he intends to display the photograph somewhere. Surely a sophisticated corporation could ensure it meets the same intent rule if the issue were to arise in the context of its data. To be safe, it could even build in routine protections by hiring people to look at the data it generates, guaranteeing that the audience requirement is met. But it would be odd if First Amendment analysis of data could be radically changed just by moving data across a human eyeball. Surely the First Amendment deserves a more thoughtful limiting principle than this.
179. 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 IMS Health was interesting to pharmaceutical companies that make office visits to the prescribing doctors. A borrower's loan repayment history data is interesting to other banks considering whether to extend credit. Anticipation of an audience is the very thing that inspires governments to regulate data flow. Thus, the distinction between information and information gathering is dubious in this context.
180. Kelly v. Borough of Carlisle, 622 F.3d 248, 251 (3d Cir. 2010).
181. Commonwealth v. Hyde, 750 N.E.2d 963, 964-65 (Mass. 2001).
182. Colten v. Kentucky, 407 U.S. 104, 109 (1972) (finding that a person does not have a "constitutional right to observe the issuance of a traffic ticket, " even when he is not violating any trespass or traffic law).
183. Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011).
184. Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005).
185. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
186. Robinson v. Fetterman, 378 F. Supp. 2d 534, 541-42 (E.D. Pa. 2005) (finding a right to record in part because "[t]he activities of the police, like those of other public officials, are subject to public scrutiny").
187. United States v. Rosen, 445 F. Supp. 2d 602, 633 (E.D. Va.) (finding that "[t]he collection and discussion of information about the conduct of government" is a core value of the First Amendment), amended by No. 1:05cr225, 2006 WL 5049154 (E.D. Va. 2006), aff'd, 557 F.3d 192 (4th Cir. 2009).
188. Letter from Jonathan M. Smith, Chief of Special Litig. Section of Civil Rights Div., U.S. Dep't of Justice, to Mark H. Grimes, Balt. Police Dep't 2-3 (May 14, 2012), available at http://www.justice.gov/crt/about/spl/documents/Sharp_ltr_5-14-12.pdf.
189. 679 F.3d 583, 586-87 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012).
190. 679 F.3d 583, 586-87 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012).
191. 679 F.3d 583, 586-87 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012).
192. 499 F.3d 553, 557-58 (6th Cir. 2007).
193. 499 F.3d 553, 557-58 (6th Cir. 2007).
194. 499 F.3d 553, 557-58 (6th Cir. 2007).
195. D'Amario v. Providence Civic Ctr. Auth., 639 F. Supp. 1538, 1543 (D.R.I. 1986).
196. 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.
197. 408 U.S. 665, 681-82 (1972).
198. 385 U.S. 374, 376-78, 387-88 (1967).
199. 385 U.S. 374, 376-78, 387-88 (1967).
200. Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1352-53 (7th Cir. 1995) (Posner, C.J.) (describing the facts of Dietemann).
201. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890). I too have endorsed the right to seclusion, and believe it can and should pass constitutional scrutiny in some contexts.
202. 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.
203. For a discussion of both the positive and negative qualities, see Kay Mathiesen, The Human Right to Internet Access: A Philosophical Defense, Int'l Rev. Info. Ethics, Dec. 2012, at 9.
204. For a discussion of both the positive and negative qualities, see Kay Mathiesen, The Human Right to Internet Access: A Philosophical Defense, Int'l Rev. Info. Ethics, Dec. 2012, at 9.
205. For a discussion of both the positive and negative qualities, see Kay Mathiesen, The Human Right to Internet Access: A Philosophical Defense, Int'l Rev. Info. Ethics, Dec. 2012, at 9.
206. 394 U.S. 557, 559, 566 (1969).
207. Matthew C. Price, The Wilsonian Persuasion in American Foreign Policy 1 (2007) (internal quotation mark omitted).
208. Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002). This passage is preceded by the following: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. "
209. Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) ("[F]reedom of thought, and speech. is the matrix, the indispensable condition, of nearly every other form of freedom. "), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969).
210. overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969).
211. Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (2007);
212. Marc Jonathan Blitz, Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution, 2010 Wis. L. Rev. 1049;
213. Dana Remus Irwin, Freedom of Thought: The First Amendment and the Scientific Method, 2005 Wis. L. Rev. 1479 (endorsing strict scrutiny any time a regulation intrudes on free thought);
214. Roy G. Spece, Jr. & Jennifer Weinzierl, First Amendment Protection of Experimentation: A Critical Review and Tentative Synthesis/Reconstruction of the Literature, 8 S. Cal. Interdisc. L.J. 185 (1998)
215. Marc Jonathan Blitz, Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution, 2010 Wis. L. Rev. 1049;
216. For a thorough discussion of the First Amendment implications of this and similar card-counting statutes, see Adam Kolber, Card Counting and Freedom of Thought 1, 5 (May 29, 2013) (unpublished manuscript) (on file with author).
217. Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 Const. Comment. 283, 285 (2011). To save the speech value of a diary, the rule at the very least must be modified so that the intended audience can be the author himself. With this modification, the photo hobbyist should have access to First Amendment protections, too. Moreover, the limit can be avoided through tricks. A photographer can meet the threshold by alleging that he intends to display the photograph somewhere. Surely a sophisticated corporation could ensure it meets the same intent rule if the issue were to arise in the context of its data. To be safe, it could even build in routine protections by hiring people to look at the data it generates, guaranteeing that the audience requirement is met. But it would be odd if First Amendment analysis of data could be radically changed just by moving data across a human eyeball. Surely the First Amendment deserves a more thoughtful limiting principle than this.
218. Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 Const. Comment. 283, 285 (2011). To save the speech value of a diary, the rule at the very least must be modified so that the intended audience can be the author himself. With this modification, the photo hobbyist should have access to First Amendment protections, too. Moreover, the limit can be avoided through tricks. A photographer can meet the threshold by alleging that he intends to display the photograph somewhere. Surely a sophisticated corporation could ensure it meets the same intent rule if the issue were to arise in the context of its data. To be safe, it could even build in routine protections by hiring people to look at the data it generates, guaranteeing that the audience requirement is met. But it would be odd if First Amendment analysis of data could be radically changed just by moving data across a human eyeball. Surely the First Amendment deserves a more thoughtful limiting principle than this.
219. 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.
220. See, e.g., Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What "The Freedom of Speech" Encompasses, 60 Duke L.J. 1673, 1675-77 (2011). Many of the seeming contradictions in precedent can be explained through a motive analysis, even if the court failed to apply one at the time. Moreover, this test ensures that the right to knowledge creation is not "unrestrained. "
221. Zemel v. Rusk, 381 U.S. 1, 17 (1965) (explaining that the "right to speak and publish does not carry with it the unrestrained right to gather information").
222. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996).
223. Leslie Kendrick, Content Discrimination Revisited, 98 Va. L. Rev. 231, 248 & n.61 (2012)
224. Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century, 36 Pepp. L. Rev. 273, 277-82 (2009) (suggesting that courts are on the lookout for illegitimate motivations and explaining the influence of Equal Protection Clause jurisprudence on the development of this First Amendment doctrine).
225. Bd. of Educ. v. Pico, 457 U.S. 853, 871 (1982) ("[W]hether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. " (footnote omitted).
226. Hill v. Colorado, 530 U.S. 703, 718 n.25 (2000) (discussing the purpose of the challenged statute).
227. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 645 (1994) (noting that the Court has recognized that a facially neutral regulation "may be content based if its manifest purpose is to regulate speech because of the message it conveys").
228. 391 U.S. 367, 369, 377 (1968).
229. 391 U.S. 367, 369, 377 (1968).
230. John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1483-84 (1975).
231. For this reason, Dana Remus Irwin's proposed protections for the freedom of thought, which demand strict scrutiny any time a regulation intrudes into free thought, are unworkable and potentially boundless.
232. Dana Remus Irwin, Freedom of Thought: The First Amendment and the Scientific Method, 2005 Wis. L. Rev. 1479 (endorsing strict scrutiny any time a regulation intrudes on free thought);
233. Daniel Solove identifies the interference of thought and knowledge as the purpose of privacy laws; privacy laws curtail "irrational judgments" and "guard against rational judgments that society may desire to curtail. "
234. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53Duke L.J. 967 (2003).
235. The very first principle guiding the White House's proposed "Consumer Privacy Bill of Rights" is "[i]ndividual [c]ontrol: [c]onsumers have a right to exercise control over what personal data companies collect from them and how they use it. "
236. White House, Consumer Data Privacy in A Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (2012) [hereinafter White House Privacy Report], available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf;
237. Pamela Samuelson has explored potential clashes between trade secrets law and the First Amendment.
238. Pamela Samuelson, Principles for Resolving Conflicts Between Trade Secrets and the First Amendment, 58 Hastings L.J. 777 (2007).
239. Apologies for butchering a beautiful Walt Whitman poem.
240. Walt Whitman, Song of Myself (1891), in Song of Myself and Other Poems by Walt Whitman 71, 131 (Counterpoint 2010). For another example of a speech analysis that looks to First Amendment goals in order to understand its scope
241. Andrew Tutt, Note, Software Speech, 65 Stan. L. Rev. Online 73 (2012).
242. Meyer v. Grant, 486 U.S. 414, 422 (1988).
243. Cohen v. California, 403 U.S. 15, 25 (1971) ("[W]holly neutral futilities. come under the protection of free speech as fully as do Keats' poems or Donne's sermons. " (second alteration in original)
244. Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J., dissenting) (internal quotation marks omitted).
245. For academic works advancing these different theories, see Steven H. Shiffrin, The First Amendment, Democracy, and Romance 46 (1990);
246. David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983)
247. C. Edwin Baker specifically addresses the First Amendment protections of a diary (as well as solving a problem or singing out loud alone).
248. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 993 (1978). Martin Redish also insists the First Amendment must cover the keeping of a diary.
249. Daniel A. Farber, Commentary, Free Speech Without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev. 554 (1991)
250. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004).
251. James Weinstein, Participatory Democracy as the Central Value of American Free Speech Doctrine, 97 Va. L. Rev. 491 (2011).
252. John Stuart Mill, On Liberty 55-56 (Currin V. Shields ed., Bobbs-Merrill Co. 1956) (1859).
253. Daniel A. Farber, Commentary, Free Speech Without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev. 554 (1991)
254. Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. Colo. L. Rev. 649 (2006). Frederick Schauer makes the sharp rebuke that the very rhetoric around the marketplace of ideas may itself be a counterexample to the notion that bad ideas eventually fade when confronted with corrective speech.
255. Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. 897, 910-11 (2010).
256. "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 left free to combat it. "
257. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 8 TheWritings of Thomas Jefferson 1, 3 (Paul Leicester Ford ed., N.Y., G.P. Putnam's Sons 1897)
258. John Stuart Mill, On Liberty 55-56 (Currin V. Shields ed., Bobbs-Merrill Co. 1956) (1859).
259. Darien Auburn McWhirter, Freedom of Speech, Press, and Assembly 1-2 (2002) (discussing Mill's influence during the earliest battles of First Amendment interpretation).
260. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
261. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 791 (1985) (Brennan, J., dissenting)
262. (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945) (internal quotation mark omitted). Reference to facts always makes an appearance in discussions of the "idea" half of the idea-expression dichotomy of copyright, too.
263. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985).
264. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
265. Richardson v. J.C. Penney Co., 649 P.2d 565, 566-67 (Okla. Civ. App. 1982) (allowing the plaintiff to recover for negligent infliction of emotional distress because he had a "bleeding ulcer").
266. Kathryn Schulz, Stress Doesn't Cause Ulcers! Or, How to Win a Nobel Prize in One Easy Lesson: Barry Marshall on Being Right, Slate (Sept. 9, 2010, 6:35 AM), http://www.slate.com/blogs/thewrongstuff/2010/09/09/stress_doesn_t_cause_ulers_or_how_ to_win_a_nobel_prize_in_one_easy_lesson_barry_marshall_on_being_right.html.
267. Kathryn Schulz, Stress Doesn't Cause Ulcers! Or, How to Win a Nobel Prize in One Easy Lesson: Barry Marshall on Being Right, Slate (Sept. 9, 2010, 6:35 AM), http://www.slate.com/blogs/thewrongstuff/2010/09/09/stress_doesn_t_cause_ulers_or_how_ to_win_a_nobel_prize_in_one_easy_lesson_barry_marshall_on_being_right.html.
268. Elizabeth Kolbert, Sleeping with the Enemy: What Happened Between the Neanderthals and Us?, New Yorker (Aug. 15, 2011), http://www.newyorker.com/reporting/ 2011/08/15/110815fa_fact_kolbert.
269. Elizabeth Kolbert, Sleeping with the Enemy: What Happened Between the Neanderthals and Us?, New Yorker (Aug. 15, 2011), http://www.newyorker.com/reporting/ 2011/08/15/110815fa_fact_kolbert.
270. Benjamin Edelman, Red Light States: Who Buys Online Adult Entertainment?, J. Econ. Persp., Winter 2009, at 209, 216, 219.
271. Benjamin Edelman, Red Light States: Who Buys Online Adult Entertainment?, J. Econ. Persp., Winter 2009, at 209, 216, 219.
272. Dawn House, Utah Is No. 1-for Online Pornography Consumption, Salt Lake Trib. (Mar. 2, 2009, 7:39 PM), http://www.sltrib.com/ci_11821265 (noting Utah also has the second-highest ranking for Google searches of the words "hot sex" and "naughty").
273. Luis Urbina, Fifteen Questions with Benjamin G. Edelman '02, Harvard Crimson (Mar. 10, 2009), http://www.thecrimson.com/article/2009/3/10/fifteen-questionswith-benjamin-g-edelman.
274. Julie E. Cohen, What Privacy Is for, 126 Harv. L. Rev. 1904, 1919-22 (2013).
275. 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.
276. 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.
277. Michael Lewis, Money Ball: The ART of Winning an Unfair Game (2003).
278. As Nate Silver has put it, increasing data will allow a skilled forecaster to tune his predictive model to be "less subjective, less irrational, and less wrong. "
279. Nate Silver, The Signal and the Noise:Why SoMany Predictions Fail-but Some Don't 259 (2012).
280. Daniel Kahneman, Thinking, Fast and Slow 80-81 (2011);
281. Dan M. Kahan, et al., "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. 851, 883-84 (2012);
282. Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen. Psychol. 175, 175 (1998).
283. 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);
284. Robin Hanson, Enhancing Our Truth Orientation, in Human Enhancement 359, 360-61 (Julian Savulescu & Nick Bostrom eds., 2009) (citing various works in the field);
285. Thomas Goetz, Harnessing the Power of Feedback Loops, Wired (June 19, 2011, 9:45 AM), http://www.wired.com/magazine/2011/06/ ff_feedbackloop (describing an experiment with driver speed that confirms that documentation of one's behavior and confrontation with the data affects behavior by preventing willful self-blindness).
286. Dan M. Kahan et al., The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks, 2 Nature Climate Change 732 (2012), http://www.nature.com/nclimate/journal/v2/n10/full/nclimate1547.html;
287. Philip E. Tetlock, Expert Political Judgment: How Good Is It? How Can We Know? 122-23 (2005) (describing an experiment showing that experts are unable to imagine possibilities if a theory rival to their own turns out to be correct);
288. Louis Menand, Everybody's an Expert: Putting Predictions to the Test, New Yorker (Dec. 5, 2005), available at http://www.newyorker.com/archive/2005/12/05/051205crbo_books1 (describing Tetlock's conclusion that "[h]uman beings who spend their lives studying the state of the world, in other words, are poorer forecasters than dart-throwing monkeys").
289. For an example of a cat outperforming experts in the purchase of stocks, see Neetzan Zimmerman, Ordinary Housecat Beats Professional Wealth Managers in Year-Long Stock-Picking Challenge, Gawker (Jan. 14, 2013, 10:25 AM), http://gawker.com/5975736/ordinary-housecat-beatsprofessional-wealth-managers-in-year+long-stock+picking-challenge.
290. Judgment Day Doesn't Dawn, News24 (Oct. 21, 2011, 11:06 AM), http://www.news24.com/World/News/Judgment-Day-doesnt-dawn-20111021.
291. I am indebted to Barbara Evans, who turned my attention to this really cool, illustrative example. She has described the Vioxx study in her own work.
292. Barbara J. Evans, Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era, 85Notre Dame L. Rev. 419, 455-56 (2010).
293. Barnaby J. Feder, Merck's Actions on Vioxx Face New Scrutiny, N.Y. Times (Feb. 15, 2005), http://www.nytimes.com/2005/02/15/business/15merck.html.
294. Rita Rubin, How Did Vioxx Debacle Happen?, USA Today (Oct. 12, 2004), http://usatoday30.usatoday.com/news/health/2004-10-12-vioxx-cover_x.htm.
295. FDA, Merck, and Vioxx: Putting Patient Safety First?: Hearing Before the S. Comm. on Fin., 108th Cong. 13-14 (2004) (statement of David J. Graham, Associate Director for Science, Office of Drug Safety, FDA).
296. Barbara J. Evans, Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era, 85Notre Dame L. Rev. 419, 455-56 (2010).
297. Barbara J. Evans, Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era, 85Notre Dame L. Rev. 419, 455-56 (2010).
298. 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).
299. Alexander Meiklejohn, Political Freedom: The Constitutional Powers of The People 26-27 (1960).
300. 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 Steven J. Heyman, Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence, 10 Wm. & Mary Bill Rts. J. 647, 650-53 (2002).
301. Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856, 875-76 (2012).
302. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
303. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53Duke L.J. 967 (2003).
304. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 20 (1971) (arguing that only overt political speech should receive First Amendment protection, and not all of it)
305. In 1988, Judge Weinstein-who at that point had "never been subject to" a reassignment order-published an article sharply questioning the authority of courts of appeals to enter such orders in the first place. Jack B. Weinstein, The Limited Power of the Federal Courts of Appeals to Order a Case Reassigned to Another District Judge, 120 F.R.D. 267, 267 (1988). I have found only a handful of other works discussing reassignment.
306. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985).
307. Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974). But the Supreme Court has also interpreted "public concern" expansively at times. For example, in Florida Star v. B.J.F., the name of a rape victim (and not just the facts surrounding the rape) was held to have a sufficient nexus to public concern.
308. 491 U.S. 524 (1989).
309. Louis Brandeis was influenced by the philosophy of John Dewey, who believed learning was ultimately a social activity, with significant interactive effects: 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.
310. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
311. John Dewey, Democracy and Education: An Introduction to the Philosophy of Education (The Free Press 1966) (1916);
312. John Dewey, My Pedagogic Creed (N.Y., E.L. Kellogg & Co. 1897).
313. Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring).
314. overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969). Justice Holmes joined Justice Brandeis's concurrence in Whitney. Id. at 380.
315. David Kennedy, John Dewey, in The Canon of American Legal Thought 113, 113-20 (David Kennedy & William W. Fisher III eds., 2006). More recently, Robert Post has recognized that political discourse must rely on access to accurate facts: "To preserve the self-government of the people, we must preserve their access to knowledge. "
316. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
317. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
318. Kim Zetter, Email Location Data Led FBI to Uncover Top Spy's Affair, Wired (Nov. 12, 2012, 2:17 PM), http://www.wired.com/threatlevel/2012/11/gmaillocation-data-petraeus.
319. 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.
320. Justin Wolfers, Point Shaving: Corruption in NCAA Basketball, 96 Am. Econ. Rev. (Papers & Proc.) 279 (2006).
321. 472 U.S. 749, 757-59 (1985) ("We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. ").
322. 472 U.S. 749, 757-59 (1985) ("We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. ").
323. 472 U.S. 749, 757-59 (1985) ("We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. ").
324. Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).
325. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
326. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
327. Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1169, 1173 (2005)
328. United States v. Eichman, 496 U.S. 310 (1990).
329. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53Duke L.J. 967 (2003).
330. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 788 (1985) (Brennan, J., dissenting).
331. Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought 238 (1968).
332. For example, Marc Rotenberg, executive director of the Electronic Privacy Information Center, asks: "Does the Obama administration really want to be on the opposite side of the European effort to upgrade and modernize its privacy law which is at its core about the protection of a fundamental freedom?"
333. Natasha Singer, Data Protection Laws, an Ocean Apart, N.Y. Times (Feb. 2, 2013), http://www.nytimes.com/2013/02/03/technology/ consumer-data-protection-laws-an-ocean-apart.html (emphasis added).
334. Julie E. Cohen, What Privacy Is for, 126 Harv. L. Rev. 1904, 1919-22 (2013).
335. Julie E. Cohen, What Privacy Is for, 126 Harv. L. Rev. 1904, 1919-22 (2013).
336. Julie E. Cohen, What Privacy Is for, 126 Harv. L. Rev. 1904, 1919-22 (2013).
337. Frederick Schauer, Profiles, Probabilities, and Stereotypes (2003) (laying out the case for generalizations and stereotypes for many (but not all) contexts).
338. Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in The Digital Age (2009) (describing disturbing shifts in power as a result of increased information);
339. Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (2011) (describing how data analytics will reduce our exposure to competing ideas);
340. Paul Ohm, Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization, 57 UCLA L. Rev. 1701, 1750-51 (2010) (describing how each of us will be beset by our own personal "databases of ruin").
341. Melinda Wenner Moyer, It's Time to End the War on Salt, Sci. Am. (July 8, 2011), http://www.scientificamerican.com/article.cfm?id=its-time-to-end-the-war-on-salt (describing a meta-analysis in the American Journal of Hypertension).
342. Melinda Wenner Moyer, It's Time to End the War on Salt, Sci. Am. (July 8, 2011), http://www.scientificamerican.com/article.cfm?id=its-time-to-end-the-war-on-salt (describing a meta-analysis in the American Journal of Hypertension).
343. Mike Mitka, IOM Report: Evidence Fails to Support Guidelines for Dietary Salt Reduction, 309 JAMA2535, 2535 (2013).
344. Melinda Wenner Moyer, It's Time to End the War on Salt, Sci. Am. (July 8, 2011), http://www.scientificamerican.com/article.cfm?id=its-time-to-end-the-war-on-salt (describing a meta-analysis in the American Journal of Hypertension).
345. Melinda Wenner Moyer, It's Time to End the War on Salt, Sci. Am. (July 8, 2011), http://www.scientificamerican.com/article.cfm?id=its-time-to-end-the-war-on-salt (describing a meta-analysis in the American Journal of Hypertension).
346. 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.
347. Paul A. Offit, Op-Ed., Don't Take Your Vitamins, N.Y. Times (June 8, 2013), http://www.nytimes.com/2013/06/09/opinion/sunday/dont-take-your-vitamins.html.
348. Jean Twenge, How Long Can You Wait to Have a Baby?, Atlantic (June 19, 2013, 10:05 PM EDT), http://www.theatlantic.com/magazine/archive/2013/07/how-longcan-you-wait-to-have-a-baby/309374.
349. Nancy Gibbs, Making Time for a Baby, Time, Apr. 15, 2002, at 48.
350. Jean Twenge, How Long Can You Wait to Have a Baby?, Atlantic (June 19, 2013, 10:05 PM EDT), http://www.theatlantic.com/magazine/archive/2013/07/how-longcan-you-wait-to-have-a-baby/309374.
351. Charles Duhigg, How Companies Learn Your Secrets, N.Y. Times Mag. (Feb. 16, 2012), http://www.nytimes.com/2012/02/19/magazine/shopping-habits.html;
352. Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1939-40 (2013) (describing practices like Target's as "Big Data surveillance" and encouraging greater restrictions).
353. 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. Harry McCracken, Glow: An iPhone App That Aims to Get You Pregnant, Time (Aug. 8, 2013), http://techland.time.com/2013/08/08/glow-an-iphone-app-that-aims-toget-you-pregnant. In the future, the developers hope to use passive collections of data that do not rely on users' interactions with the app.
354. Tara Parker-Pope, Keeping Score on How You Take Your Medicine, N.Y. Times Well Blog (June 20, 2011, 5:23 PM), http://well.blogs.nytimes.com/2011/06/20/ keeping-score-on-how-you-take-your-medicine.
355. Matt Richtel, How Big Data Is Playing Recruiter for Specialized Workers, N.Y. Times (Apr. 27, 2013), http://www.nytimes.com/2013/04/28/technology/how-big-datais-playing-recruiter-for-specialized-workers.html?pagewanted=all.
356. We may also learn that some industries are better or worse than we think in terms of rewarding merit. Vivienne Ming, the chief scientist of Gild (a headhunting firm that uses data to find talent in the rough), believes that Silicon Valley firms are less open minded than their reputation suggests. Id. Meanwhile, some researchers are finding that law firms, with their famously stuffy reputation for erecting glass ceilings for women on the partnership track, in fact treat men and women equally when their work-family commitments are the same.
357. Kenneth G. Dau-Schmidt et al., Men and Women of the Bar: The Impact of Gender on Legal Careers, 16 Mich. J. Gender& L. 49 (2009).
358. Sarah Johnston, Kids in Danger, Two Year Check-Up: SaferProducts. gov 7 (2013), available at http://www.kidsindanger.org/docs/research/ SaferProducts_Report.pdf.
359. Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. (forthcoming 2014), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2217064.
360. 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).
361. Cnt. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564 (1980) (permitting restrictions of commercial speech if the state can assert a substantial interest to be achieved by the restriction, and the regulation is tailored to that interest).
362. Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. Ill. L. Rev. 783, 785
363. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 Stan. L. Rev. 1049 (2000). Volokh also limits his analysis to restrictions on the communication of information, and does not comment on the process of gathering data in the first place.
364. Eugene Volokh, The Trouble with "Public Discourse" as a Limitation on Free Speech Rights, 97 Va. L. Rev. 567, 567-68 (2011).
365. Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856, 875-76 (2012).
366. 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.
367. Erez Reuveni, Copyright, Neuroscience, and Creativity, 64 Ala. L. Rev. 735, 766-68 (2013). Cass Sunstein describes human knowledge as a dispersed network of information and inferences, with various types of errors and inefficiencies.
368. Cass R. Sunstein, Infotopia: How ManyMINDS Produce Knowledge (2006).
369. Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 Const. Comment. 283, 285 (2011). To save the speech value of a diary, the rule at the very least must be modified so that the intended audience can be the author himself. With this modification, the photo hobbyist should have access to First Amendment protections, too. Moreover, the limit can be avoided through tricks. A photographer can meet the threshold by alleging that he intends to display the photograph somewhere. Surely a sophisticated corporation could ensure it meets the same intent rule if the issue were to arise in the context of its data. To be safe, it could even build in routine protections by hiring people to look at the data it generates, guaranteeing that the audience requirement is met. But it would be odd if First Amendment analysis of data could be radically changed just by moving data across a human eyeball. Surely the First Amendment deserves a more thoughtful limiting principle than this.
370. LexisNexis Public Records, LexisNexis, http://www.lexisnexis.com/en-us/ products/public-records.page (last visited Dec. 18, 2013).
371. Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012) (exploring the original meaning of the Press Clause and its relevance to today's news environment).
372. Ben Goldacre, Op-Ed., Health Care's Trick Coin, N.Y. Times (Feb. 1, 2013), http://www.nytimes.com/2013/02/02/opinion/health-cares-trick-coin.html.
373. Anemona Hartocollis, Racial Gap in Test Scores Found Across New York, N.Y. Times (Mar. 28, 2002), http://www.nytimes.com/2002/03/28/nyregion/racial-gap-intest-scores-found-across-new-york.html?pagewanted=all&src=pm.
374. Liz Alderman, Greek Editor Is Arrested After Publishing a List of Swiss Bank Accounts, N.Y. Times (Oct. 28, 2012), http://www.nytimes.com/2012/10/29/world/europe/ greek-editor-arrested-after-publishing-list-of-swiss-bank-accounts.html.
375. Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 143, 144-45 (2010).
376. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659-60 (1990)
377. overruled by Citizens United v. FEC, 558 U.S. 310 (2010).
378. 558 U.S. 310.
379. Mike Madison, Big Data Democracy, madisonian. net (Nov. 14, 2012), http://madisonian.net/2012/11/14/big-data-democracy.
380. Frank Pasquale, Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries, 104 Nw. U. L. Rev. 105, 112 (2010).
381. Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856, 875-76 (2012).
382. 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)
383. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (same);
384. Daniel J. Solove, & Neil M. Richards, Rethinking Free Speech and Civil Liability, 109 Colum. L. Rev. 1650, 1656-1660 (2009) (describing First Amendment limitations on the torts of defamation and public disclosure). Owen Fiss's theory that the government can regulate private speech to ensure that it does not "impoverish public debate" would also be relevant to scholars endorsing exceptions for privacy from corporate data collection.
385. Owen M. Fiss, The Irony of Free Speech 42 (1996). The trouble is that Fiss's theory of the First Amendment invites courts to legitimize restrictions on disfavored speech by framing the restriction in the amorphous "impoverish[ment]" language. Nelson Tebbe argues that Fiss's approach has special relevance to government speech. Thus, impoverishment may not be a sufficiently strong check against a self-serving or overreaching government. The theory might be most useful and appropriate, however, in the context of the government's own speech.
386. Nelson Tebbe, Government Nonendorsement, 98 Minn. L. Rev. 648 (2013).
387. Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 Const. Comment. 283, 285 (2011). To save the speech value of a diary, the rule at the very least must be modified so that the intended audience can be the author himself. With this modification, the photo hobbyist should have access to First Amendment protections, too. Moreover, the limit can be avoided through tricks. A photographer can meet the threshold by alleging that he intends to display the photograph somewhere. Surely a sophisticated corporation could ensure it meets the same intent rule if the issue were to arise in the context of its data. To be safe, it could even build in routine protections by hiring people to look at the data it generates, guaranteeing that the audience requirement is met. But it would be odd if First Amendment analysis of data could be radically changed just by moving data across a human eyeball. Surely the First Amendment deserves a more thoughtful limiting principle than this.
388. Matt Ridley, The Rational Optimist: How Prosperity Evolves 160 (2010).
389. Robert W. Crandall & Charles L. Jackson, Tech. Policy Inst., Antitrust in High-Tech Industries 20 (2010), available at http://techpolicyinstitute.org/ files/crandalljackson%20antitrust_in_high_tech3.pdf
390. Editorial, Technology Threatens Monopolies, N.Y. Times (Mar. 1, 1997), http://www.nytimes.com/1997/03/01/opinion/ technology-threatens-monopolies.html.
391. A cynic might wonder if Microsoft is 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.
392. Natasha Singer, When the Privacy Button Is Already Pressed, N.Y. Times (Sept. 15, 2012), http://www.nytimes.com/2012/09/16/technology/in-microsofts-new-browser-theprivacy-light-is-already-on.html?pagewanted=all.
393. Matt Ridley, The Rational Optimist: How Prosperity Evolves 160 (2010).
394. David Meyer, Google's Chrome Finally Embraces Do Not Track, but with a Warning, ZDNet (Nov. 7, 2012, 1:03 PST), http://www.zdnet.com/googles-chrome-finallyembraces-do-not-track-but-with-a-warning-7000007022 (noting that Internet Explorer and Safari, developed by Microsoft and Apple, respectively, have already incorporated a "Do Not Track" option).
395. David Meyer, Google's Chrome Finally Embraces Do Not Track, but with a Warning, ZDNet (Nov. 7, 2012, 1:03 PST), http://www.zdnet.com/googles-chrome-finallyembraces-do-not-track-but-with-a-warning-7000007022 (noting that Internet Explorer and Safari, developed by Microsoft and Apple, respectively, have already incorporated a "Do Not Track" option).
396. These are the primary concerns of Neil Richards, Shubha Ghosh, and Ashutosh Bhagwat.
397. David Meyer, Google's Chrome Finally Embraces Do Not Track, but with a Warning, ZDNet (Nov. 7, 2012, 1:03 PST), http://www.zdnet.com/googles-chrome-finallyembraces-do-not-track-but-with-a-warning-7000007022 (noting that Internet Explorer and Safari, developed by Microsoft and Apple, respectively, have already incorporated a "Do Not Track" option).
398. 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.
399. See 18 U.S.C. § 1030 (2012).
400. Bridges v. California, 314 U.S. 252, 282 (1941) (Frankfurter, J., dissenting).
401. 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.
402. Derek E. Bambauer, Orwell's Armchair, 79 U. Chi. L. Rev. 863, 867 (2012).
403. Ralph Waldo Emerson, The Conduct of Life 76 (H.G. Callaway ed., Univ. Press of Am. 2006) (1860).
404. Paul M. Schwartz, Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence, 52 Stan. L. Rev. 1559, 1572 (2000).
405. Shulman v. Group W Prods., Inc., 955 P.2d 469, 495 (Cal. 1998).
406. Heidi Anderson has begun to define the core interests of seclusion.
407. Heidi Reamer Anderson, Plotting Privacy as Intimacy, 46 Ind. L. Rev. 311 (2013).
408. Derek E. Bambauer, Orwell's Armchair, 79 U. Chi. L. Rev. 863, 867 (2012).
409. Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
410. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 845 (2006).
411. Press Release, White House, Fact Sheet: Plan to Protect Privacy in the Internet Age by Adopting a Consumer Privacy Bill of Rights (Feb. 23, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/23/fact-sheet-plan-protect-privacyinternet-age-adopting-consumer-privacy-b.
412. 15 U.S.C. §§ 1681b, 1681n (2013).
413. 267 F.3d 1138, 1142-43 (D.C. Cir. 2001).
414. 267 F.3d 1138, 1142-43 (D.C. Cir. 2001).
415. 312 F.3d 357 (8th Cir. 2002), abrogated by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007).
416. abrogated by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007).
417. abrogated by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007).
418. abrogated by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007).
419. 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. ").
420. Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 347 (Cal. 1976) (holding that the "public policy favoring protection of the confidential character of patientpsychotherapist communications must yield to the extent to which disclosure is essential to avert dangers to others").
421. 45 C.F.R. § 64.512 (2013) (enumerating particular exceptions to the general disclosure prohibition rather than setting out a flexible standard).
422. Michael S. Wolf & Charles L. Bennett, Local Perspective of the Impact of the Hipaa Privacy Rule on Research, 106 Cancer 474 (2006) (finding that Hipaa led to a tripling of clinical study recruitment costs). Barbara Evans has described the disastrous consequences that privacy rules can cause by complicating the aggregation and sharing of medical data for research purposes.
423. Barbara J. Evans, Seven Pillars of a New Evidentiary Paradigm: The Food, Drug, and Cosmetic Act Enters the Genomic Era, 85Notre Dame L. Rev. 419, 455-56 (2010).
424. Fair Housing Act of 1968 § 804, 42 U.S.C. § 3604 (2011).
425. 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).
426. 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.
427. Declan McCullagh, Should Amazon. com Be Able to Charge You More than Someone Else?, CNET News (May 4, 2007, 9:41 AM PDT), http://news.cnet.com/ 8301-10784_3-9715959-7.html.
428. Lori Andrews, Op-Ed., Facebook Is Using You, N.Y. Times (Feb. 4, 2012), http://www.nytimes.com/2012/02/05/opinion/sunday/facebook-is-using-you.html.
429. Dana Mattioli, On Orbitz, Mac Users Steered to Pricier Hotels, Wall St. J. (Aug. 23, 2012, 6:07 PM EDT), http://online.wsj.com/article/SB10001424052702304 458604577488822667325882.html.
430. For a discussion about how the collection of personal data has democratized the availability of consumer credit
431. J. Howard Beales, III & Timothy J. Muris, Choice or Consequences: Protecting Privacy in Commercial Information, 75 U. Chi. L. Rev. 109, 115-17 (2008).
432. Derek E. Bambauer, Orwell's Armchair, 79 U. Chi. L. Rev. 863, 867 (2012).
433. Patient Protection and Affordable Care Act § 10101(e), 42 U.S.C. § 300gg-17(c)(4) (2011).
434. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670 (2011).
435. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670 (2011).
436. The consequences are worse when legislation is passed. Donald Lively's account shows that "[h]istory actually suggests that the undoing of misconceived or dated regulation presents a much more vexing challenge."
437. Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C. L. Rev. 1067, 1098 (1994)
438. Donald E. Lively, Fear and the Media: A First Amendment Horror Show, 69 Minn. L. Rev. 1071, 1076 (1985).
439. Delivery Requirements and Privacy Restrictions, 47 C.F.R. § 64.1601(b) (2013).
440. Calling Number Identification Service-Caller ID, 60 Fed. Reg. 29,489, 29,489 (June 5, 1995) (discussing privacy objections)
441. Marc Rotenberg, Director, Computer Prof'ls for Social Responsibility, Telephone Privacy in the 1990's Before the United States Telephone Association (Sept. 13, 1989).
442. 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. "
443. Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America 8-9 (2000).
444. Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in The Digital Age (2009) (describing disturbing shifts in power as a result of increased information);
445. Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in The Digital Age (2009) (describing disturbing shifts in power as a result of increased information);
446. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
447. 249 U.S. 47 (1919).
448. 249 U.S. 182 (1919).
449. 249 U.S. 204 (1919).
450. 249 U.S. 211 (1919).
451. G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 Calif. L. Rev. 391, 420-21 (1992).
452. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
453. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
454. Jay Stanley, Am. Constitution Soc'y, Issue Brief: The Crisis in Fourth Amendment Jurisprudence 11-12 (2010), available at http://www.acslaw.org/files/ACS%20Issue%20Brief%20-%20Stanley%204th%20Amend ment.pdf.
455. 250 U.S. 616, 624-31 (Holmes, J., dissenting).
456. Schaefer v. United States, 251 U.S. 466, 477 (1920)
457. Gilbert v. Minnesota, 254 U.S. 325, 333 (1920).
458. David M. Rabban, Free Speech in Its Forgotten Years 343 (1997).
459. Abrams, 250 U.S. at 628-29 (Holmes, J., dissenting).
460. Abrams, 250 U.S. at 629 (Holmes, J., dissenting).