Regulation, Antipower, Semantic Discontinuity

'Regulating the Data Market: The Material Scope of American Consumer Data Privacy Law' by Bryce Clayton Newell, Nadezhda Purtova, Young Eun Moon and Hugh J Paterson IIIi n (2024) 45(4) University of Pennsylvania Journal of International Law 1058 comments 

Information privacy is having a moment in the United States. Only a few decades ago, data was described as “the sludge of the information age—stuff that no one has yet thought very much about.” Now, scholars refer to the widespread commercial practice of “trafficking in human information.” Clearly, much has changed in the intervening years, yet only recently have any U.S. jurisdictions adopted broad—what might be called non-sectoral, comprehensive, or omnibus—data protection (or data privacy) laws. Recently, there has been a resurgence of legislative interest in data protection or data privacy laws in the United States. This “new wave” of data privacy laws began with enactment of the California Consumer Privacy Act in 2018 and subsequent revisions, including those promulgated in the California Privacy Rights Act of 2020 (referred to collectively hereinafter as “CCPA”). Subsequently, Virginia and Colorado enacted “comprehensive” consumer privacy laws in 2021, followed by Utah and Connecticut in 2022. In 2023, Delaware, Indiana, Iowa, Montana, Oregon, Tennessee, and Texas also enacted similar laws, followed by New Jersey in early 2024. The text of these laws often tracks language proposed, but not adopted, in Washington State over several previous legislative sessions. Legislatures around the United States, in state houses and houses of Congress, have considered adopting more comprehensive consumer privacy and data protection laws in the last few years. However, Congress has failed to order anything from the plentiful menu before it, although significant bipartisan steps have been taken, leaving U.S. data privacy law in the hands of the few state governments that have moved to adopt such a law. 

The importance of data privacy has also received additional attention after the Supreme Court decided Dobbs v. Jackson Women’s Health Organization on June 24, 2022. In that case, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the U.S. Constitution does not provide a federal right (of decisional privacy) to choose to abort a pregnancy. Importantly, for purposes of privacy law, Justice Alito’s majority decision sparked concerns amongst abortion rights advocates that commercial data collection and surveillance practices would be harnessed by law enforcement to investigate individuals seeking information about and access to abortions in states where abortion is now illegal or at least highly regulated. Of course, privacy and data protection concerns are broad and varied, but this post-Roe America fervor has only put increased pressure on legislatures to act in meaningful ways to protect individual privacy—from both private commercial actors as well as from law enforcement. Indeed, the need to do something about data privacy is only underscored by the fact that, “[u]ntil the CCPA, most American law permitted [non- governmental] entities to collect and use personal data however they wished by default, absent a specific legal rule forbidding a particular practice.” According to Determann, this default presumption to allow data collection and use absent some specific legal prohibition is one of the hallmarks that set data (or information) privacy law apart from data protection law. The second defining characteristic of data protection law is that the focus is on “protecting information concerning persons” rather than persons themselves (personal data essentially operates as a legal proxy where the aim is to protect persons but the focus is on personal data). 

Although many countries around the world have enacted broad data protection laws, the most frequent reference is to the European Union (“EU”)’s General Data Protection Regulation (“GDPR”). But the GDPR—which generally applies to personal data processing for non-law enforcement purposes—is not the only important data protection tool in the EU. The GDPR was adopted alongside Directive 2016/680, commonly referred to as the Law Enforcement Directive or “LED.” The Law Enforcement Directive specifically regulates public law enforcement-related processing of personal data, applying when personal data is collected or processed “by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security . . . .” Additionally, Article 8 of the Charter of Fundamental Rights of the European Union (“EU Charter”) makes the protection of personal data a fundamental rights concern within the EU. These data protection rights also exist against the backdrop of a broad fundamental right to a private and family life, home, and communications, as enshrined in Article 7 of the EU Charter and Article 8 of the European Convention on Human Rights (“ECHR”). 

In the United States, no comparable fundamental rights to privacy, federal data protection, or law enforcement-directed data protection law exist. The state-level data protection laws analyzed in this Article represent the closest things to the GDPR—or to broad data protection law generally—in the United States at present. Information gathering practices of law enforcement are primarily regulated by state and federal search and seizure laws, including the Fourth Amendment to the U.S. Constitution and other constitutional provisions, as well as communication privacy laws such as the Stored Communications Act, but those provisions are simply not comparable to the LED in purpose or scope, and have failed to limit warrantless law enforcement access to commercial databases in several high-profile contexts. As such, members of Congress have introduced bills such as the proposed Fourth Amendment is Not For Sale Act, which would require law enforcement to obtain a warrant prior to accessing certain personal data in commercial databases. 

Conventional wisdom suggests that the growing interest in omnibus data protection laws in the U.S. has been driven by adoption of the GDPR in the EU. An alternative theory of catalysis posits that American data privacy laws differ significantly from the GDPR and are more likely inspired by the CCPA adopted in California in 2018, just a month after the GDPR went into effect in Europe. There is also a semantic difference in basic terminology, as American commentators often refer to these new laws as data privacy laws instead of data protection laws. However, to the extent they focus on data rather than personal privacy and set baseline, default prohibitions on data processing, these laws resemble data protection laws, albeit limited to a consumer protection framing that is narrower than the fundamental rights foundation of the GDPR. Despite resembling data protection law, Chander, Kaminski, and McGeveran, argue that the CCPA, “differs significantly—and consciously—from the European model . . . [offering] a fundamentally different regime for data privacy,” one that lacks “major structural elements of the GDPR . . . .” Yet again, while either might have been the impetus, the current swath of laws being adopted and proposed in the last few years often appears to follow what has been called the “Virginia Model” —copying and replicating many aspects of Virginia’s Consumer Data Protection Act of 2021 (“VaCDPA”) which was based on legislative language proposed previously in Washington State—even if their impetus was the CCPA. There is also evidence that corporate interests have been lobbying these states to create business-friendly, uniform laws that minimize variation across jurisdictions, including such lobbying in Virginia in support of the VaCDPA. 

Minimal variation is, of course, better for business. However, such uniformity at the state level would gut the possibility for legislative experimentation in the various states, and with high levels of corporate involvement and lobbying at the state level, the likely outcome is watered-down, business-friendly legislation that lacks much real innovation in establishing strong data protection rules in ways that promote privacy interests. In that vein, Utah’s law, one of the latest enacted at the time of writing, has also been described as taking “a lighter, more business-friendly approach to consumer privacy” than other existing data protection laws, and it appears the trend may be moving away from more privacy-focused laws like the GDPR and CCPA. Additionally, at the federal level, movement in Congress toward potentially adopting the American Data Privacy and Protection Act (“ADPPA”) recent legislative sessions became enmeshed in debates about federal preemption of state data privacy,  especially since the ADPPA was seen by some as less robust than the CCPA in California. 

In this Article, we examine and compare the material scope of these new American data privacy laws. Understanding the material scope of the law is important, as it forms the foundation upon which the rights and obligations rest. We compare the laws in the first five states to have enacted broad data protection laws—each of which have also gone into effect as of the end of 2023—with each other and with the GDPR. Specifically, we look at how these laws define and conceptualize their subject matter, focusing on the key concepts of 1) personal data and similar terms that determine what is subject to regulation; 2) “persons,” “consumers,” and other terms that determine to whom and in which contexts the law provides rights (data subjects); 3) which forms of “data processing” are subject to regulation; and 4) which entities acquire obligations (and potential liability) arising from such rights. Importantly, we do not examine the rights enshrined in these laws themselves, or the full range of other provisions contained in the statutes, although future research ought to compare those provisions as well. 

Examining the affordances that these new information privacy laws provide to commercial data controllers, including to share data with state institutions, highlights how certain legislative choices allow the continued consolidation of informational power within corporations and state organs, resulting in the potential for domination and the loss of individual and collective freedom. Drawing from neorepublican political philosophy, we analyze how well these laws protect user (consumer, data subject) privacy and ensure some measure of what Philip Pettit calls “antipower” — that is, the power to resist the possibility of arbitrary or uncontrolled interference by others. This analysis is informed by Julie Cohen’s notion of “semantic discontinuity,” and we show how developing more robust laws that regulate data practices with the aim of preserving or enforcing interstitial complexity can promote antipower and reduce possibility of informatic domination. This, in turn, can better protect privacy as a fundamentally important right, instrumentally linked to personal and collective freedom. We question whether the material scope of these laws adequately captures and protects the underlying interests that appear to have motivated their adoption, such as privacy and the need to protect people from other data-driven harms. We also briefly note whether, and to what extent, these laws regulate or address the issue of law enforcement access to commercial databases. Finally, we examine to what extent the material scope of these laws—including how they protect privacy interests and limit corporate power—contributes to promoting neorepublican notions of liberty, non-domination, and antipower. ... 

In this Part, we provide a brief overview of the major theoretical constructs that we use later on to reflect on the comparative findings of this research—namely, civic or neorepublican conceptions of liberty and domination, and the application of those ideas to the realm of privacy and data protection. At the outset, it should be noted that we have intentionally kept this analysis separate from our primary comparative analysis of these laws, so as to maintain the ability for the comparison to stand on its own, regardless of whether readers are sympathetic to the particular political philosophy employed or the normative conclusions we draw from it. Thus, even if one rejects the tenants of the neorepublican position we take on privacy and its application to data privacy law, we argue the comparative analysis will still be useful.

Constitutionalism

'Demystifying Environmental Constitutionalism' by Sam Bookman in (2024) 54 Environmental Law 1 comments 

For many, statutes and regulations are not enough: states must entrench environmental concerns as supreme constitutional norms, binding the site of contestation in constitutional design, amendment, and interpretation. Explicit environmental rights—often phrased as the right to live in a “healthy” environment—are widespread. In addition to rights, courts and governments face a range of constitutional environmental questions, including those related to federalism, separation of powers, and representation. 

The desire for action drives the constitutionalization of the environment. If the environment is a matter of supreme importance, should the supreme law not reflect as much? But beyond this general commitment to the importance of the environment—and the entrenchment of at least some environmental decisions beyond the reach of ordinary majorities—the mere act of constitutionalization tells us little about how states should govern, protect, and imagine the environment. Like other forms of “constitutionalism,” “environmental constitutionalism” is a conceptual frame capable of many different meanings, institutional forms, and justifications. This Article draws out three different paradigms: liberal-conservative, technocratic, and transformational. These differences matter. “constitutionalism” carry normative weight. Different versions compete with one another, vying to emerge as the dominant paradigm. What framers and judges understand when they are “doing” environmental constitutionalism influences how governments draft, and courts interpret, constitutional provisions. As long as the concept remains vague, environmental constitutionalism is potentially dangerous, calling for urgent and high-level action on environmental issues without revealing what sort of action is required. Before answering its call, we should demystify its meaning. 

Environmental constitutionalism remains potentially dangerous for another reason as well. Environmental constitutionalism almost universally involves a turn to rights and courts as the vanguard of environmental protection, despite taking many forms. Such a turn comes at the expense of democratic participation. Yet it is precisely this high energy democracy that is necessary to truly transform the institutions which have brought us to the point of environmental crisis. Demystifying the plural meanings of environmental constitutionalism reveals what is missing—a program of constitutional environmental democracy. This Article thus reveals the stakes of competing claims to “environmental constitutionalism,” while simultaneously exposing environmental constitutionalism’s limits as a transformative program of legal and environmental change. In the Anthropocene, constitutions matter: but they matter beyond the world of rights and courts. 

In Part II, I analyze the extraordinary global spread of constitutional environmental law and set out a framework for understanding its possible meanings. In Part III, I demystify environmental constitutionalism. Environmental constitutionalism is not a singular movement or program, but instead appears in at least three different strands, each with significant consequences for constitutional theory, design, and interpretation. Each strand answers the same fundamental question: Why environmental constitutionalism? 

A first strand, the liberal-conservative strand, provides the following answer: because environmental matters fall within existing conceptions and traditions of mainstream constitutional theory. In other words, environmental constitutionalism can be accommodated within the existing conceptual toolbox. Because liberal ideas have historically dominated constitutional theory (especially in the Global North), this strand stresses the coherence of environmental rights with existing bases for constitutional rights generally, as well as existing theoretical frameworks, such as political process theory. These devices have been perhaps surprisingly productive in generating a broad range of normative constitutional arguments, many of which national courts have adopted. 

The second paradigm is technocratic, providing the following answer: because environmental governance requires a high degree of expertise, which is beyond the capacity of electoral majorities. The technocratic strand values constitutions—as generally supreme and entrenched bodies of law—as tools that transcend ordinary politics, and instead locate decision-making power in expert institutions. Drawing on a discourse of “administrative rationalism,” the strand constructs the environment as a stock of resources that can be managed without reference to political value judgments. The logic of the technocratic strand is visible in court decisions which justify judicial intervention on the basis of the court’s own relative institutional capacity or where courts act to strengthen the institutional capacity of the bureaucracy. 

A third paradigm claims to be transformative. In response to the question, “Why environmental constitutionalism?” the transformative paradigm provides the answer: because environmental crises require fundamental changes in interrelated social, political, and economic systems, and constitutions can embody the necessary legal and aspirational framework for such transformation. The philosophical sources of transformative environmental constitutionalism are eclectic, going beyond liberal political theory and drawing on environmental ethics, political economy, ecological sciences, and Indigenous knowledge systems. 

In Part IV, I argue that these different paradigms matter. First, they reveal that environmental constitutionalism—much like constitutionalism more generally—can operate as a conceptual framework for many different projects and discourses. Different conceptions of environmental constitutionalism are sometimes mutually reinforcing, connected together in particular proposals for constitutional design or interpretation. Drafters and judges cobble together available conceptual tools, even if those tools originate in different paradigms. This bricolage of different ideas need not weaken proposals for constitutional environmental governance; indeed, it may sometimes strengthen them. 

But at times, the three strands conflict with one other or produce different consequences in design and interpretation. As the concept of “environmental constitutionalism” gains normative, conduct-guiding salience, paying attention to these differences will be crucial. Drafters, judges, and scholars should be alert to the different options and conclusions provided within each discourse and consider the extent to which they may be appropriately applied in different circumstances. 

The demystification of existing environmental constitutionalism also opens the way for reconstruction of the concept, revealing that existing notions of environmental constitutionalism retain a fundamental distrust in popular decision-making. In this sense, all three strands remain locked into many of the assumptions of existing constitutional practice, including a preoccupation with rights and courts. In Part V, I sketch out the possibility of a new mode of environmental constitutionalism: constitutional environmental democracy. This conception shifts attention away from courts and instead emphasizes the role of participatory institutions such as legislatures and citizens’ assemblies. Constitutional environmental democracy thus draws on a longstanding tradition of popular and political constitutionalism. I offer this sketch as something of an ideal theory, intended for societies where scope conditions allow for meaningful deliberation and rough conditions of equality. Such a society may simply not exist. Nevertheless, there is value in imagining the possibilities for constitutional law. While a more democratic form of environmental constitutional governance may not yet be operationalizable, its imagining may open up new ways of thinking and opportunities for experimentation. This Article starts to embark on such a project, though a fully worked through program demands an extensive future research agenda. The urgency of the moment requires nothing less.

Feathers and Theory

'The superb A Bird’s-Eye View of Animals in the Law' by Visa Kurki in (2024) The Modern Law Review comments 

The article develops an analytic account of nonhuman animals’ current legal status. Animals are often characterised as legal things and property, but this characterisation is both simplistic and, in some cases, incorrect. The article seeks to dispel a number of orthodoxies regarding the legal status of animals and offer a more nuanced and contextual account. The emphasis is on Western law, with a particular focus on European jurisdictions. The article approaches animal legal status in terms of two historical regimes: the Commodity Regime and the More-than-Commodity Regime. While treating animals as commodities has been the rule for millennia, the situation has recently become more multifaceted. For instance, the private law status of companion animals has shifted away from that of commodities. Furthermore, it is argued that some wild animals have stopped being legal things altogether as a result of EU wildlife law. The multifarious arguments are then synthesised in order to produce a bird’s-eye view of animals in the law.

Kurki argues

The legal situation of animals is often summarised as animals are ‘things’, ‘property’ or ‘legal objects’. However, I will claim that there is no meaningful single label – such as ‘thing’ or ‘legal object’– that all animals would fall under. The argument will rely on the methodological premise that the legal status of animals is not best understood by faithfully employing the labels and categories offered by the legislator and judges. Instead of this deferential approach, I will show how a substantive approach – looking at the content of the norms governing animals’ legal situation – will yield a more accurate description. 

The traditional theoretical approach to animals’ legal status is based on two bifurcations: thing/person and protection/rights. First, everything is either a legal thing or a legal person. Things are rightless entities that can be owned, whereas persons have rights. Even though things cannot have rights, they can regardless be protected. Under animal protection, animals are things, protected from unnecessary suffering. If the vision of animal rights is realised, on the other hand, animals are turned into right-holding persons. Hence, the protection/rights bifurcation builds upon the person/thing categorisation. 

However, these traditional bifurcations are problematic in many regards. They overemphasise the role of private law and neglect the perspectives of other areas of law. There are already plenty of examples of how the practice of animal law has advanced in ways that traditional theories have trouble explaining. For instance, the declarations of some European countries that animals are ‘not things’ – but not persons either – are not straightforwardly explainable under the traditional person/thing bifurcation. Another example is the developing legislation and case law in some parts of Brazil according to which certain animals are ‘non-personal subjects of rights’. A new explanation of animals’ legal status is needed. 

A more holistic approach will show,first,that though most animals are still legal things, they are legally more than merely things – their legal status can- not be exhaustively described by merely making reference to thinghood; and second, the legal thinghood of animals is of a special kind. Furthermore,I will argue that the legal status of animals is not necessarily determined by top-down categorisations by legislators or judges. Rather, the property status of animals may be ‘crowded out’ by increasing legal protections, which may in some cases entail that classifying animals as property is no longer appropriate. This will yield the conclusion that some animals – primarily certain protected wild animals – are not legal things. 

Not all of these conclusions apply to every Western legal system. This article is an exercise in particular jurisprudence: the theoretical analysis of certain elements of modern Western legal thought and legal systems.I will seek to distil certain unifying features of Western legal systems,and present them as ideal-types.The presented analysis and framework will provide a better theoretical understanding of animals’ legal status but may not correspond in detail to every legal system. 

A word on terminology. The phrase ‘legal status’ is highly ambiguous. I use ‘legal status’ in a broad sense, to refer to the overall body of legal norms applying to some entity. I also occasionally use ‘legal situation’ as a synonym for ‘legal status’. By ‘legal thing’, I mean an entity that can be owned. Not all things are necessarily property: in the civil law tradition, wild animals have traditionally been categorised as res nullius,‘things belonging to no-one’. A central distinction is that between commodities and other types of things. A commodity is a thing that the law treats as readily replaceable by another. What I mean by ‘replaceability’ will become clear over the course of the article. One of my central arguments is that while treating animals as commodities has been the rule for millennia, the private law status of especially companion animals has shifted away from that of commodities. 

Especially in the civil law tradition,‘legal object’ has been understood synonymously with ‘legal thing’. However, after the legislative declarations that animals are not things, some scholars now think that animals are legal objects but not legal things. ‘Object’ and ‘thing’ are thereby not synonyms anymore. I consider this understanding of ‘object’ not to be a particularly useful category; I will return to this issue over the course of this article. 

The article is structured as follows. In the following section, I will discuss two ‘inventories of the universe’,ie high-level categorisations of how the law makes sense of the world. I will first present the ‘Orthodox Inventory’ of the universe: an understanding of the world as exhaustively divided into persons and things. I will, however, argue – partly based on my earlier work – that what I term the ‘Substantive Inventory’ offers a better account of the universe according to the law. This inventory will provide the basis for a new way of understanding the legal status of animals as well: even though most animals are still things, their status is more multifaceted than that. The following sections will provide a more multifaceted account of animals. The third and fourth sections will analyse the legal status of animals through two co-existing historical legal regimes – what I call the ‘Commodity Regime’ and the ‘More-than-Commodity Regime’. 

Finally, in the penultimate section I will offer a synthesis of the multifaceted current legal status of animals.The final section will conclude.

Cheating

'Understanding how and why students use academic file-sharing and homework-help websites: implications for academic integrity' by Christine Slade, Guy J Curtis and Sheona Thomson in (2024) Higher Education Research and Development comments

 In the past decade, extra-institutional file-sharing and homework-help websites have gone from being small-scale operations to large corporate businesses. File-sharing and homework-help websites threaten academic integrity when students use assessment work sourced from these sites as if it were their own. However, little is known about how students use these websites, what motivates students’ use, and whether students are aware of the risks of using these sites. In an international survey of 1000 students, nearly half had heard of, or used, file-sharing and homework-help websites, and 377 completed a longer follow-up survey. We also undertook qualitative analysis of social media posts related to file-sharing and homework-help websites. Students indicate that they used the websites to obtain material to study for and/or complete assessments, and they exchanged assessment and study materials for altruistic reasons as well as for personal benefit. Students were mostly aware of academic integrity risks in using the websites but were typically unaware of their own institutions’ position or policies regarding the use of these sites. It is recommended that higher education institutions develop policies and educate students regarding unaffiliated file-sharing and homework-help websites to promote academic integrity. 

 

Contract cheating is the outsourcing of students’ educational assessment work, which they should personally complete, to third parties, often for payment (Bretag et al., 2019; Curtis et al., 2022a). Research into contract cheating has examined students’ use of ghostwriters, who complete bespoke assignments on demand (e.g., Clarke & Lancaster, 2006; Eaton et al., 2022; Newton, 2018). Yet Curtis et al. (2022c) found that it is more common for students to download, lightly edit, and then submit assessments written by other students that they obtain from file-sharing websites. Other recent research showed a nearly 200% increase in internet traffic to a homework-help website within the first year of the COVID-19 pandemic (Lancaster & Cotarian, 2021). Yet, with rare exceptions (e.g., Rogerson, 2022, n2023), little attention has been paid to students’ use of file-sharing and homework-help websites, and the potential impact on academic integrity. 

 

This paper reports on a research project that investigated how students use file-sharing and homework-help online services, and their motivation in undertaking these transactional practices. On these platforms, we know that students share examples of examination preparation notes and even completed assessment tasks, and use the ‘tutoring’ and ‘homework help’ functions to rapidly source solutions to assessments in progress, e.g., unproctored online quizzes (Rogerson, 2023; Rogerson & Basanta, 2016). Nonetheless, as the following review of the current literature reveals, there are numerous gaps in our knowledge of how students interact with and think about these services. 

 

The ‘Buy, sell, trade’ business model 

 

In general, academic file-sharing websites operate by allowing students to upload materials such as their notes and assessment items (essays, reports, tests), and, in return, they receive ‘unlocks’ that allow them to download a lesser number of files than they have uploaded (Eaton, 2021; Rogerson & Basanta, 2016). Alternatively, students can pay a subscription fee to access (or unlock) a certain number of items in the period of their subscription. Homework-help websites allow students to post questions and receive answers, and they may also provide access to answers that have already been provided to other students (Lancaster & Cotarian, 2021). Some websites provide both file-sharing and homework-help functions, while others just provide one. Thus, depending on the website, students may pay and/or upload materials to download files and/or get answers to questions. 

 

The business model of file-sharing and homework-help websites is such that they can be used both legitimately as a study aid by students or potentially to cheat on higher education assessments (Eaton, 2021; Rogerson, 2022). Recent evidence suggests that over 1 in 10 Australian students submit work that was principally written by other students, which they obtained from file-sharing websites (Curtis et al., 2022c). In addition, the ability to rapidly get ‘expert’ answers to questions allows students to obtain third party written solutions to assessment items and submit these under their own name. Concerns about such use and promotion of homework-help websites were recently articulated by the Tertiary Education Quality Standards Agency in Australia because such actions would breach new laws against providing cheating services (Ross, 2023).