BDMRs

'The Evolution of Birth Registration in England and Wales and its Place in Contemporary Law and Society' by Liam Davis in Modern Law Review comments 

 Birth registration is currently enjoying a resurgence in legal, academic and social interest as diverse family forms present challenges as to how to record parenthood. This is evident through a rise in recent case law – and accompanying media coverage – surrounding birth registration, ranging from the ability for lesbian families to be accurately reflected on a birth certificate, to surrogacy breakdowns and the genetic father's (in)ability to be registered, to trans parents and their (in)ability to register in their chosen parental term. This article focuses on the latter, particularly contemporary cases such as R (on the application of JK) v Registrar General for England and Wales (JK) and R (on the application of McConnell) v The Registrar General for England and Wales (McConnell). Both cases concerned trans parents who wished to register their children's births in their social and factual parental role, but this was denied by the courts. The fact that these types of cases have grown in number within the last decade, alongside the rise in academic and policy interest, thus positions birth registration as a highly contentious topic – especially concerning how to register parenthood. Despite this contention, it will be shown how, historically, birth registration was concerned with recording property and inheritance rights. The recording of parenthood and presumed (bio)genetic relationships was, arguably, simply a by-product of other policy aims rather than a concrete aim in itself. While birth registration policy has supposedly changed in recent years, or at least had additional policy aims imposed through now being concerned with facilitating parent-child relationships, this is arguably contrary to the historical aim(s) of birth registration. There has also been no public or political debate about the purpose of birth registration in contemporary law and society. It is therefore crucial that this is debated – and clarified – sooner rather than later, lest birth registration continue to be used for purposes for which it was not originally intended. 

This article begins, first, by outlining the resurgence concerning birth registration, synthesising recent case law and highlighting some of the claims made in recent years that the sole – or primary – purpose of the system of birth registration has been to act as a (bio)genetic register, synonymous with recording parenthood. The following section considers more critically the recent case law – particularly (but not exclusively) McConnell – and scrutinises the law surrounding trans parents and birth registration. After documenting and critically engaging with birth registration's contemporary resurgence and the current landscape, especially as it relates to trans parents, the article takes a step back to consider the history of birth registration and its historical function(s). It does this to clearly highlight the misguided assumptions as to the presumed purpose of birth registration regarding recording (bio)genetic parenthood. While a person's (biogenetic) ‘origins’ may be registered more often than not, it is submitted that this is a by-product of the historical aims of registration. In the final section, through analysing legislative changes over the past 30 years or so, this will be shown to be because of hegemonic ideas surrounding family and kinship that have been evident throughout the centuries. In other words, a person's biogenetic ‘origins’ will inevitably have been understood to be documented on the birth certificate because law, policy and society mostly understood a family as consisting of a cisgender (cis), heterosexual man and woman with biogenetic children – otherwise called the traditional/nuclear family. Consequently, this couple were invariably viewed as the (‘natural’) parents who should be registered on the birth certificate. 

The article adopts this structure in order to emphasise the salience of the historical analysis. While it could just as easily take a broadly chronological structure, beginning with the contemporary analysis sets up the importance of the issue to be explored and, in this way, highlights the importance of the history of birth registration to this discussion (which, as will be explored, many seem to neglect). In this light, as this article will show that documenting one's origins has never been an explicit feature of birth registration, it follows there must be a discussion about whether we want the policy underpinning birth registration to change to reflect this common assumption. Indeed, this article – in being one of, if not the first to offer a comprehensive, socio-legal history of birth registration – aims to open up the discussion as to what the purpose of birth registration should be. If birth registration, specifically the birth certificate, is to operate as a site to see one's (biogenetic) origins, this needs to be explicitly stated and policy amended accordingly. Until such time, at the very least birth registration policy should reflect the fact that families now (and have always) come in various formations – not just a traditional nuclear structure. As a result, birth registration can no longer reflect a particular (cis, heterosexual, dyadic) ideal of family life at the expense of others, which it does currently by insisting binary trans parents register in the parental role allied to the sex they were assigned at birth (in other words, those assigned female at birth must register as mothers, those assigned male as fathers, and there being no recognition of non-binary people generally in law). Birth registration therefore needs to expand to accept all those who call themselves a ‘family’ regardless of their make-up and register them in a way appropriate to that family. This is especially salient if one of birth registration's current policy aims is the facilitation of parent-child relationships

Native Title

The ALRC has been commissioned to inquire into the Australian native title regime. 

The Terms of Reference are 

having regard to:

• the operation of the Native Title Act 1993 (Cth) (Native Title Act) and the future acts regime for over 30 years the passage of almost a decade since the last review of the Native Title Act (Connection to Country: Review of the Native Title Act 1993 (ALRC Report 126)) 

• the significance of the Native Title Act, with native title having now been determined to exist in exclusive and non-exclusive form over a substantial proportion of the Australian land mass, with almost 500 claims determined and more than 100 claims ongoing 

• the deep connections of First Nations Australians to Country that are recognised through a determination of native title, and the considerable processes that native title holders have undergone to achieve this legal recognition 

• the opportunity for the native title system to contribute significantly to social, cultural, environmental and economic outcomes for First Nations people, businesses, organisations and communities 

• the role of the future acts regime as a precursor to economic and other activities on native title land 

• the importance of the future acts regime being appropriately designed for Australia’s current and future social and economic development, in a way that respects the rights and interests of native title holders 

• the Australian Government’s agreement in principle with Recommendation 4 of the former Joint Standing Committee on Northern Australia in its report, A Way Forward .... 

the ALRC is asked to consider:

• the intention of the Native Title Act, as stated in its preamble, to be a special measure for the advancement of First Nations peoples, and to ensure native title holders are able to fully enjoy their rights and interests 

• the current operation of the future acts regime, including Indigenous land use agreements (ILUAs), and related parts of the Native Title Act, with the aim of rectifying any inefficacy, inequality or unfairness 

• options for efficiencies in the future acts regime to reduce the time and cost of compliance for all parties the rights and obligations recognised in the international instruments to which Australia is a party or which it has pledged to support, including the United Nations Declaration on the Rights of Indigenous Peoples 

• options within laws and legal frameworks to support native title groups to effectively engage with the future acts regime and to support consensus within groups in relation to proposed future acts 

• options to support native title groups, project proponents and governments to share in the benefits of development on native title land, including opportunities for native title groups to lead or co-lead development, and for ensuring native title groups receive commensurate and timely compensation for the diminution of native title rights and interests caused by future acts 

• options for how the future acts regime can support fair negotiations and encourage proponents and native title groups to work collaboratively in relation to future acts 

• the different levels of procedural rights of native title groups in relation to different types of future acts and whether these are appropriately aligned with the impacts on native title rights and interests whether the Native Title Act appropriately provides for new and emerging industries engaging in future acts the National Native Title Tribunal’s role in relation to future acts 

• how the rights in the future acts regime compare with other land rights regimes, such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and any relevant international approaches 

• options to strengthen data collection and appropriate data transparency to support the operation of the future acts regime. 

The ALRC is asked to conduct the review with regard to the Socio-economic Outcomes and Priority Reforms of the National Agreement on Closing the Gap. 

In undertaking its review, the ALRC should consider any findings and recommendations of inquiries, review processes and reports that the ALRC considers relevant, including other work underway to address recommendations arising from the A Way Forward report.

Schools

'Assessing the privacy of digital products in Australian schools: Protecting the digital rights of children and young people' by Luci Pangrazio and Anna Bunn in (2024) 6 Computers and Education comments 

The increasing reliance in schools on educational technology (edtech) poses a threat to children's digital privacy, particularly where children's data is used for or shared with others for commercial purposes. However, assessing the privacy of digital products is challenging given the opaque and evolving nature of the digital economy. Many schools share the responsibility for assessing edtech with education departments and authorities; however, to date, there has been very little empirical or theoretical work on how schools, education departments and authorities evaluate the privacy risks and data practices associated with the digital products used in schools. Drawing on an analysis of the Safer Technologies 4 Schools (ST4S) framework developed by Education Services Australia, education department policies, as well as interviews with education department staff and representatives, we examine how the data practices of digital products are examined in government schools in Australia and how schools are supported to choose tools that demonstrate best practice in terms of protecting students’ digital privacy. Findings suggest that while the goal of the ST4S framework is to streamline and unify digital privacy standards across states and territories, the complexity of the Australian education system, the number and diversity of digital products used, and the different governance approaches across the country make this difficult. Our conclusions reveal a compliance culture towards children's digital privacy, rather than a best practice approach, and a trust (or even ‘overtrust’) in ‘big tech’. However, we note some promising developments in this area and make recommendations for future research.

TRIPS

Factors influencing the prioritisation of access to medicines in trade-related intellectual property policymaking in Thailand' by Brigitte Tenni, Joel Lexchin, Chutima Akaleephan, Chalermsak Kittitrakul, Belinda Townsend, Deborah Gleeson in (2024) Journal of World Intellectual Property comments 

International trade is often viewed as an essential component of economic growth, however trade agreements come with risks to public health, including to access to medicines. Thailand, like many other low and middle-income countries (LMICs), faces ongoing trade-related challenges that threaten access to an affordable and sustainable supply of medicines. These challenges include external trade pressures to modify policies and laws that govern intellectual property (IP) and bilateral and regional trade agreements through which high-income countries like the United States (US) seek to increase patent protection for pharmaceutical products and processes. 

Access to an affordable and sustainable supply of medicines is an important policy objective for Thailand given its commitment to universal health coverage (UHC) and reliance on locally produced and imported generic medicines. In 2002, Thailand became one of the first middle-income countries to implement UHC which covers 47 million people or 72% of the population. IP barriers have been a consistent challenge to Thailand's ability to ensure access to affordable medicines within its UHC scheme. 

Thailand has a rich history of balancing trade pressures and public health priorities and has been lauded for achieving a degree of policy coherence between trade and health. This balance has been attributed to instances of bold political leadership and skilled advocacy by a well-networked and informed civil society. Trade and health officials have often come together to address divergent interests and positions. A broad range of stakeholders that includes academics, lawyers, pharmacists, patient interest and consumer groups and access to medicines activists, has closely followed these developments and has created broad-based coalitions and sustainable advocacy to preserve Thailand's policies that maximise access to affordable generic medicines. Thailand, therefore, provides an interesting case study of the relationship between trade-related IP and access to medicines as many LMICs look to Thailand for lessons of how to navigate and balance public health imperatives and IP obligations. 

Thailand's IP laws and policies, including its patent laws, are shaped by its membership of the World Trade Organization (WTO). Thailand has been a WTO member since its inception in January 1995 and a member of General Agreement on Trade and Tariffs since 20 November 1982. As a condition of WTO membership, Thailand must abide by the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which came into effect on 1 January 1995 and remains the most comprehensive multilateral agreement on IP. TRIPS binds WTO Members to minimum standards of IP protection and obliges Member States to make patents available for pharmaceutical products or processes that meet the standard criteria for patentability, novelty, inventive step and industrial applicability. TRIPS also contains ‘flexibilities’, designed to mitigate the negative impacts of patents, such as high medicines prices caused by pharmaceutical company monopolies. Compulsory licensing (CL) is one such example of a TRIPS flexibility. CL refers to the process through which a government allows the production of a patented product or the use of a patented process without the consent of the patent owner. The patent holder must be paid a royalty based on a percentage of sales by the licensee. 

Thailand has also experienced ongoing pressures to extend IP protection through its participation in trade agreements with provisions that exceed the requirements of TRIPS (often referred to as ‘TRIPS-plus’ provisions). TRIPS-plus provisions, such as obligations to extend patent terms beyond 20 years, lower thresholds for granting patents or restrict the grounds for granting compulsory licences, can lead to longer monopoly periods for new medicines and delays to the market entry of affordable generics. Thailand has not yet signed a trade agreement with these patent-related TRIPS-plus provisions, yet it has experienced ongoing pressures to do so. 

Indeed, Thailand provides an interesting puzzle. It introduced patent IP protection in the early 1990s before it was required to through TRIPS, is one of the few countries that has initiated CL for local production of generic medicines, and has actively opposed TRIPS-plus measures in trade negotiations, yet has repeatedly expressed interest in joining the Comprehensive and Progressive Agreement on Trans-Pacific Partnership (CPTPP), which includes TRIPS-plus measures (although some of these are currently suspended). 

Why and how governments prioritise access to medicines in their trade policymaking has not received much attention to date in the scholarly literature on trade and health. One study of how health issues fared on the Australian government's agenda during its participation in the Trans-Pacific Partnership negotiations identified 16 factors including the strength of exporter interests; extent of political will of Trade and Health Ministers; framing of health issues; support within the major political parties; the strength of available evidence; and the presence of existing domestic legislation and international treaties, among others. Similarly, a study of why TRIPS-plus measures dropped off the negotiating agenda of the Regional Comprehensive Economic Partnership Agreement (RCEP) negotiations (to which Thailand was party) identified the importance of the technical capacity of strong civil society actors and LMIC negotiators; supportive public health norms; processes that allowed for public scrutiny and public health views; the use of evidence; and country specific support for public health issues. 

A recent narrative review of public health advocacy strategies to influence trade policy identified a range of factors as important for advancing health issues on trade policy agendas, including favourable international media attention and mainstream media coverage, leadership by Ministers of Trade and Health; public support; and political party support. Very few studies identified by the narrative review included Thailand or other nations in Southeast Asia. Two studies explored the feasibility of implementing a human rights-based impact assessment tool to measure the impact of TRIPS-plus trade agreements in Thailand. A study of the access to medicines movement in Thailand traces its links to AIDS activism and identified access to knowledge as a key component of the movement's success. Another study from Thailand explored the capacity building of health actors to engage in global health diplomacy including trade negotiations. This study found that an increase in the capacity of health actors to engage with trade negotiators and a greater understanding of the effects of trade on health led to greater attention to health within trade negotiations. In terms of compulsory licencing, a study analysed the policy processes that led to the granting and implementation of Thailand's compulsory licences and found that the effective confluence of knowledge and evidence, civil society movements, public support and leadership of policy makers and politicians helped overcome the seemingly insurmountable obstacles to issuing the CLs in Thailand. Similarly, Rosenberg found that established relationships between individuals, collective advocacy and structural elements in Thailand created an enabling environment for Thailand to prioritise health over IP rights. 

The current study aims to elucidate the factors that have influenced prioritisation of access to medicines in trade-related IP policy making in Thailand by focusing on three policy case studies: (1) Thailand's patent law and its amendments; (2) its issuance of compulsory licences; and (3) its decision-making about TRIPS-plus trade agreements including potential membership of the CPTPP. These case studies were chosen because they reflect distinct episodes in Thailand's IP policymaking. The findings can provide an evidence base for future trade-related IP decision making for Thailand and other countries that seek to overcome trade-related IP barriers to access to an affordable supply of medicines.

edTech

'Edtech in Higher Education: Empirical Findings from the Project ‘Universities and Unicorns: Building Digital Assets in the Higher Education Industry’ by Janja Komljenovic, Morten Hansen, Sam Sellar and Kean Birch (published by the Centre for Global Higher Education, Department of Education, University of Oxford comments 

Higher education (HE) is by now thoroughly digitalised. Universities use a variety of digital products and services to support their operations. The educational technology (EdTech) industry has been expanding in the past decade, while investors have become important actors in the field. This report offers findings from the ESRC-funded research project ‘Universities and Unicorns: Building Digital Assets in the Higher Education Industry’ (UU), which investigated new forms of value in digitalised HE as the sector engages with EdTech providers. ... 

The project was conducted between 1 January 2021 and 30 June 2023. It investigated new forms of value in digital and digitalised higher education (HE) as the sector engages with educational technology (EdTech) providers. The project was especially interested in digital user data and data operations. We followed three groups of actors: universities, EdTech start-up companies, and investors in EdTech. 

Our study of universities focused on understanding their: digitalisation strategies and practices; digital ecosystems and collaborations with EdTech companies; attitudes towards and experiences with EdTech companies; user data operations and data outputs; and key challenges with digitalisation. 

Our study of EdTech start-up companies focused on understanding: development of products and services; business models and strategies; how products are datafied and their data operations; how user data is made valuable; experiences and relations with universities; experiences and relations with investors; and challenges they are facing in their work and growth. 

Our study of investors focused on understanding: their views of HE and the future of the sector; the role that EdTech should play in this future; their beliefs about the value of user data; their investment theses, strategies and activities; and their experiences and relations with the EdTech and HE sectors. xx Understanding EdTech relationally, and bringing these groups together, allowed us to gain particular insights into the digitalisation of HE and its political economy. We aimed to trace the flow of ideas, strategies, and actions between these actors and to understand how and why the EdTech industry is developing as it is. 

Our conceptual approach centred on rentiership and assetisation. The global economy is increasingly characterized by rentiership: the move from creating value via producing and selling commodities in the market to extracting value via controlling access to assets. In the digital economy, rentiership is often exercised by controlling digital platforms and pursuing revenues associated with platforms, such as collecting and monetising digital data extracted via these platforms. Users became valuable through their engagement with the platform and are made visible through various user metrics. Emerging work on assetisation in education argues that this is a productive way to understand the impact of the privatisation, financialisation, and digitalisation of public education. However, the rise of assetisation does not mean that HE is no longer a public good or subject to commodification. Instead, it adds new complex forms of value creation and governance to the sector. We should note that this research project was conducted before the release of ChatGPT into public use. Therefore, this report does not make reference to the turbulent discussions about generative AI and its potential usage and impacts in HE. Finally, we note that this report offers an empirical description of key themes and dynamics identified in our study. More in-depth and theorised analyses of project findings are being published in journal articles and book chapters, all of which are openly accessible. The Appendix includes a list of publications.  ...

In this section, we briefly summarise key overall findings, which are analysed in more detail in academic publications, i.e. journal articles and book chapters (see Appendix). The following findings are relevant to our case studies and might be different in other contexts. 

Takeaway #1: Big Tech and legacy software are prominent in digitalising higher education 

Big Tech infrastructure and platforms, legacy software, and EdTech incumbents dominate university digital ecosystems. It is challenging for the EdTech start-up industry to enter HE markets. Digital products and services offered by new companies represent a small proportion of digitalisation work at universities. EdTech companies primarily target individuals as customers, enterprises for staff development and training, and lower levels of education (i.e. schooling rather than HE). 

Takeaway #2: EdTech in HE is less advanced than imagined 

There is a discrepancy between the promises of the EdTech industry regarding the quality and impact of digital products and services and the perception of university customers. Many university actors, as well as a few EdTech companies, argued that the current quality of EdTech products is generally low compared to other sectors. 

Takeaway #3: Making user data valuable is difficult 

Collecting, cleaning, sorting, processing, and analysing digital user data demands significant human, technological, and financial resources. It is difficult to make user data analysis useful and valuable, such that universities are willing to pay higher fees for data-driven products. Most EdTech companies that we analysed struggle with monetising user data. There is also less user data analysis currently in the sector than imagined by the EdTech industry in its public discourse. The omnipresent belief in the value of user data among all actors is disjunctive with the realities of data practices, which are mostly simple or non-existent. Most university users are sceptical about learning analytics. 

Takeaway #4: User data analytics in HE are not well-developed 

EdTech companies attempt to make their digital products valuable by incorporating user data analytics into their core products. However, currently, these analytics are simple and remain at the level of basic descriptive feedback loops for the user. Nevertheless, there is a clear trend in which EdTech companies are continuing their attempts to construct new metrics, scores, and analytics to monetise data, with efforts to convince customers of the value of these analytics.  

Takeaway #5: Datafication in HE happens at universities 

Universities are in the driving seat of their institutional datafication. Universities are establishing data warehouses, and many aim to collect all user data produced by external digital platforms in order to organise and analyse it for pedagogical and business purposes. However, universities currently lack the capacity to analyse, interpret and act on data. Universities need to establish frameworks for action based on data and acquire the requisite personnel and skills to do so. Universities should ensure that data outputs (e.g. analytics, metrics, scores) are truly representative of what is measured and build confidence in their communities regarding data-driven decision-making. 

Takeaway #6: Digitalisation and datafication create work and costs for universities 

Digitalisation and EdTech promise to bring efficiency and cost savings for universities, but in reality, university actors feel that digitalisation and data operations create more work and higher costs. In addition, new staff profiles and skills are needed, including data scientists, vendor managers, cloud engineers, as well as more learning technologists. 

Takeaway #7: Good EdTech does not challenge core university values and practices 

University actors find technology useful in general and are interested in technological innovation in relation to their work. However, there are two instances where university actors are sceptical towards EdTech. First, when companies' business models are exploitative and extractive. Second, when digital products interfere with the university's core values and practices, such as by challenging professional judgement or academic freedom. Intentions to automate the teaching process or provide behavioural nudges are often received with scepticism. Most university actors feel that user data collection should be limited, and data outputs, including analytics, should be restricted and carefully evaluated. 

Takeaway #8: The aims of EdTech require greater clarity 

The key aims of EdTech are understood to be personalisation, automation, enhanced student engagement, and greater institutional efficiency. However, there are discrepancies between university, EdTech, and investor actors in terms of how they understand these objectives and, consequently, how they will be achieved. Each of these aims needs clarification, including recognising the plurality of dimensions to each objective. 

Takeaway #9: Future imaginaries of tech companies and universities 

The future imaginaries of HE and EdTech are constructed by the EdTech industry and policy actors. There are discrepancies between investors, EdTech companies, and universities in relation to what EdTech should do and how it should shape the future of HE. Universities should drive these discussions and determine their futures and the role of technology in creating these futures. 

Takeaway #10: Democratic data governance 

Universities should do more to inform students and staff about the digital products and services they routinely use. Universities should also continuously provide transparent information to students and staff about user data collected from them and what is being done with this data within their universities and externally. Students and staff should have the choice to participate or not in user data collection and processing. Students and staff should be included in the governance of EdTech and user data at their institutions. 

Takeaway #11: There is a plurality of assetisation processes in EdTech 

EdTech companies establish a variety of processes to control and charge for access to their assets. These include mediating content, organising and mediating teaching interventions, and digitalising and mediating credentials. Typical moats that EdTech companies build are lock-in, network effects, and integration of products into everyday individual practices.

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.