02 May 2015

Attention and Property

'The Right to Attention' by Jasper L. Tran argues
In 1890, U.S. Supreme Court Associate Justice Louis D. Brandeis and his former classmate Samuel D. Warren published an article titled “The Right to Privacy” in the Harvard Law Review’s Fourth Volume. Little did they know, 125 years later, that article has given rise to and shaped a substantial body of constitutional law that inspired many civil right movements and gave rise to many constitutional rights each individual has today. That article also inspires the writing of this article, “The Right to Attention,” celebrating its 125th anniversary.
What marketing, contracts, healthcare — specifically informed consent and mandatory ultrasounds — have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective — e.g., how much information the communicator discloses — or on the information itself, but surprisingly, not much on the receiver’s perspective.
This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention, yet advertisement companies and scam artists freely bombard us with their “products” daily resulting in our own time and monetary loss. Just to name a few, without recognizing the right to attention, contract formation and informed consent are hollow and superfluous: contract has no meeting of the mind from both parties and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills like their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.
This paper proposes legislation to recognize the right to attention as a statutory right, or alternatively, the courts to recognize the right to attention as a common law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights include, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right not to receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right not to be required to receive information against one’s will.
This paper is the first to identify this right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This paper hopes to identify and illuminate this right to attention in hope to generate further discussion and exploration of this novel bundle of rights.
'Information Privacy and Data Security' by Lauren Henry in (2015) Cardozo Law Review de Novo comments 
 Legal academic and policy discourse generally presumes that information privacy and data security are interchangeable goals. The conventional wisdom is that data security is a handmaiden of information privacy, and so what serves data security will serve information privacy. This Essay aids law and policy development in both fields by defining their relationship to one another. The two fields are inexorably related because both are sets of rules governing sensitive data sets, and so modifications to set of rules can impact the other set. Furthermore, information privacy and data security both implicate issues of trust and institutional legitimacy from the point of view of the individuals whose data is being collected, processed, or distributed. However, data security has separate objectives from information privacy that can be agnostic or even in opposition to information privacy. The law should acknowledge information privacy and data security as separate institutional objectives to prevent undesirable – or at least unpredictable – results in edge cases where data security’s objectives run counter to those of information privacy. Henry's 'Privacy as Quasi-Property' was noted here.