Discrimination

'The Case of the Religious Gay Blood Donor' by Brian Soucek in William and Mary Law Review (Forthcoming) comments

The Food and Drug Administration prohibits sexually active gay men from donating blood. This essay envisions an original legal challenge to that rule: not the predictable equal protection suit, but a religious freedom claim brought by a gay man who wants to give blood as an act of charity. Because the FDA’s regulations substantially burden his exercise of religion—requiring a year of celibacy as its price—the FDA would be forced to show that its policy is the least restrictive means of preventing HIV transmission through the blood supply. Developments in testing technology and the experience of other countries suggest that this would be hard to prove. 

A lawsuit like this would either produce a major victory for gay rights or, as likely, would force courts to clarify and curtail some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: their expansive view of religious burdens and their willingness to impose costs on the government or other third parties. In other words, by appropriating legal arguments from the right, a lawsuit like this presents a win-win proposition for progressive litigators. This essay considers why mainstream gay rights organizations may nonetheless shy away from bringing it.

Soucek's challenging article begins

Sexually active gay men cannot donate blood under current federal law. But federal law also prohibits the government from substantially burdening someone’s religious practice unless it is the least restrictive way of advancing a compelling governmental interest. 

So what happens if a gay man wants to donate blood as an act of charity—a religious practice encouraged by his church? 

This Essay imagines the lawsuit that might allow him to do so. The suit could go either of two ways. Given the generous understanding of religious liberty law in recent Supreme Court opinions, the case might be an easy win. Requiring celibacy as the price of living one’s faith surely counts as a burden that is substantial; and public health, while clearly a compelling governmental interest, does not necessitate such draconian means, as the experience of other countries, the testimony of medical experts, and advances in HIV testing all make clear. A win for the plaintiff would be a major gay rights victory, undermining an enduring and stigmatizing policy remnant of the AIDS crisis.

On the other hand, the government might claim that giving blood isn’t really a form of religious exercise, or that even if it is, it is a religious calling that can be answered in alternate ways. A gay man who wants to be charitable can donate money or time or soup—not blood. The government might also claim that expanding the pool of blood donors would either increase costs, if it is to be done safely, or else it would marginally increase the rate of HIV transmission through the blood supply—thereby imposing burdens on third parties like hemophiliacs and others who depend on transfusions of blood. 

This is all to say that the religious gay plaintiff could lose. But his loss would likely require courts to clarify—and curtail—some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: the expansive and deferential notion of “substantial burden” at play in cases like Hobby Lobby,  and the disregard for governmental and thirdparty costs seen in recent actions by the Department of Justice, the Department of Health and Human Services, and those across the country seeking exemptions to antidiscrimination laws that protect gays and lesbians. In short, the case is a coin toss: heads, gay rights advocates win; tails, religious conservatives lose.

It needs to be asked, then, why gay rights advocates are not clamoring to bring such a case. Perhaps they just haven’t thought of it; after all, it has never been proposed in academic literature. But Part IV of this Essay suggests that deeper considerations may be at play: worries about the way this litigation could provoke anti-gay backlash and reinforce stereotypes, even as it promises to disrupt the stereotypical opposition between religion and gay rights.

Before getting there, Part III, the heart of the Essay, shows how this hypothesized challenge brings together in a single case all of the deepest unanswered questions in recent religious liberty law—from the nature of religious burdens and the fungibility of religious practice, to the costs of granting exemptions and the ways those costs can be disbursed without violating the constitution. Part III looks at how a religious gay blood donor could win either by actually winning his case, or by a loss that manages to curb recent advances in religious freedom law that are currently threatening LGBT and women’s rights.

Prior to that, Part II shows how a religious freedom challenge to the gay blood donation ban differs from the more predictable equal protection challenge that others have discussed10—and how the former may be a stronger claim. Part I begins by explaining the ban that is at issue in everything that follows.

Crypto and States

'Why Quantum Computing Will Not Destabilize International Security: The Political Logic of Cryptology' by Jon Lindsay comments

The implications of quantum information technology for cybersecurity and strategic stability seem worrisome. In theory, an adversary with a quantum computer could defeat the asymmetric encryption protocols that underwrite internet security, while an adversary using quantum communications guaranteed secure by the laws of physics could deny intelligence warning of surprise attack. To assess these claims, this article first develops a general political logic of cryptology grounded in the bargaining model of war, which understands uncertainty as an important cause of war and institutions as an important source of information. Cryptology of any technological vintage is shaped by both aspects of this logic, with ambiguous implications for strategic stability. In practice, strategic interaction between intelligence competitors using real quantum systems implemented in fallible human organizations will mitigate the impact of quantum computing. The upshot is that the revolutionary scientific innovation of quantum computing will probably have only marginal political impact, in part because the fields of cryptology and computing have already undergone important transformations in recent decades.

'Digital Switzerlands' by Kristen Eichensehr in (2019) 167 University of Pennsylvania Law Review (Forthcoming) comments

 U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments. The companies’ power raises serious questions about how to understand their role. Scholars have proposed varying conceptions, suggesting that the companies should be understood as public utilities, information fiduciaries, surveillance intermediaries, or speech governors. This Article takes up another possibility, one suggested by the companies themselves: that they are “Digital Switzerlands.” 

The companies’ claim to be Digital Switzerlands encompasses two ideas: that the companies are on par with, not subordinate to, the countries that try to regulate them, and that they are in some sense neutral. This Article critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies’ behavior toward governments. But the companies’ efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged. 

Turning to the normative, the Article proposes several considerations for assessing the desirability of having companies be Digital Switzerlands. Does the rise of the companies as competing power centers benefit individual users? Does the companies’ lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched to prevent backsliding? The Article offers preliminary answers to these questions, with the knowledge that the answers may well evolve along with the companies’ self-conception.

Judicial Engagement and AV

'Judicial engagement and AV links: judicial perceptions from Australian courts' by Anne Wallace, Sharyn Roach Anleu and Kathy Mack in (2018) International Journal of the Legal Profession comments

Use of technology significantly impacts the nature of judicial work. While audio-visual (“AV”) links may generate some efficiencies, the increasing use of this technology conflicts with other important developments, notably procedural justice and therapeutic jurisprudence, which recognise and valorise the interactive nature of judicial work, especially sentencing in criminal cases. Analysing judicial perceptions of AV use in courts creates a clearer picture of its benefits and disadvantages, particularly in light of expectations of direct personal engagement.

The authors argue

Information and communications technologies are often key components of strategies to promote organisational efficiency and reduce costs in courts (see, for example, New South Wales Department of Justice, 2016–17 Annual Report). The use of audio-visual (“AV”) technology also has implications for managing judicial workloads and for the skills and qualities judicial officers need to perform their role. However, courtroom technology may have unintended effects on the quality of communication required for judicial work, especially with the defendant in criminal cases. 

After describing the volume and nature of work and the use of AV technology in Australian courts, the article draws on perceptions and experiences of judicial officers to investigate the implications of AV technology for the reciprocal communication between the judicial officer and others involved in the court process. This is important in light of developments, notably procedural justice and therapeutic jurisprudence, which valorise the interactive nature of everyday judicial work. 

This article reports findings from two projects. First, investigations undertaken nationally over the past decade by the Magistrates Research Project and Judicial Research Project (JRP) into several dimensions of judicial work. Second, research undertaken as part of a three-year empirical research project that investigated the use of AV links in Australian court proceedings (Gateways).

UK Research Integrity report

The UK House of Commons Science and Technology Committee report on research integrity comments

Research is fundamental to the process of pushing back the frontiers of human knowledge and understanding. Research helps cure diseases, tackle climate change, and understand the world around us. The UK has an enviable reputation for high-quality research, and researchers are among the most trusted groups of people in the eyes of the public. It is recognised that the vast majority of research undertaken in the UK is of high quality and high integrity.

Nevertheless, error, questionable practices, and outright fraud are possible in any human endeavour, and research integrity must be taken seriously and tackled head-on. The 2012 Concordat to Support Research Integrity provided a set of high-level commitments in this vein, but, six years on, while all the most research intensive-universities are complying with key recommendations of the Concordat, around a quarter of universities overall are not fulfilling the basic Concordat recommendation of producing an annual report on research integrity.

Compliance with the Concordat has technically been a prerequisite for receiving funding from UK research councils and higher education funding councils since 2013, but non-compliance has not led to any hard consequences. This reflects the fact that the Concordat has only high-level commitments and recommendations, meaning that ‘compliance’ is difficult to assess in practice. More broadly, there has been a lack of co-ordinated leadership to drive the implementation of its recommendations in universities, such as transparency in declaring the number of misconduct investigations carried out each year. The Concordat should be tightened so that compliance can be more easily assessed, with a timetabled route-map to securing 100% compliance. We welcome Universities UK’s plans to convene a meeting of the Concordat signatories to discuss the issues raised in our report and look forward to seeing further action in this area.

The current lack of consistent transparency means that it is impossible to assess the scale of the research integrity issue, leading to accusations that parts of the sector are policing themselves in a secretive way in order to maintain its reputation or, worse, a perception that investigations are not conducted properly in order to avoid embarrassment. Meanwhile, there is a risk that a future high-profile scandal could expose any weaknesses in this arrangement. Fraud appears to be rare, but the number of institutions reporting no investigations each year does not tally with other available information—the self-reported pressures on researchers to compromise on standards, an increase in the rate of journal articles being retracted, and a growth in image manipulation in articles. Part of the cause may be a lack of understanding of the principles of statistics among researchers, and greater emphasis should be placed on statistical rigour. The sector needs to see increased transparency and reporting of problems as a positive sign that issues are being identified and dealt with accordingly, rather than as a threat.

We see a gap in the UK research integrity system for a new committee to provide a means of independently verifying whether a research institution has followed appropriate processes in investigating misconduct, following similar models in Canada and Australia. The primary responsibility to investigate misconduct should remain with the employer, but there is also a need to improve confidence in the existing system of self-regulation and to adjust for the potential conflict of interest of ‘self-policing’. More broadly, the new committee should be responsible for championing research integrity in the sector, driving the future implementation of a tightened Research Integrity Concordat, and pursuing issues we identify in this report. The new committee will need to be established by and work closely with UK Research and Innovation, and produce an annual report on the state of research integrity in the UK. This is an opportunity for the research community to get ahead of this issue; without such a body being established, there is a risk that the demand for statutory regulation will grow in response to any future scandals, despite a consensus against such regulation within the community.

Meanwhile, there are other steps that can be taken to support research integrity rather than simply responding to problems. We are encouraged to hear that research integrity will form part of the ‘environment’ judgements for the next Research Excellence Framework, and that there are moves towards appropriate publishing of datasets, and better reporting of research methods. Meanwhile, UKRI needs to understand how the pressures and incentives within the research funding system affect research behaviour and consider where counterbalances are needed to ensure a healthy research culture. Training is key to ensuring that the right research culture is imbued by each new generation of researchers and their supervisors, and to ensuring that errors such as common misuses of statistics are avoided. In order to increase the effectiveness of research, increased emphasis should be put on the need to publish ‘negative’ research findings, especially in the field of medicine.

Employers, funders and publishers of research need to be able to share information to support investigations of misconduct, and it is encouraging that protocols are being developed to help employers to manage cases which cross institutional boundaries. 

 The Committee states

In January 2017 our predecessor Committee launched a follow-up inquiry into research integrity, to coincide with the publication of a briefing on this topic from the Parliamentary Office of Science and Technology (POST). 

The Committee called for written submissions on the issues identified in the POST briefing, including:

• The extent of the research integrity problem; 

• Causes and drivers of recent trends; 

• The effectiveness of controls/regulation (formal and informal), and what further measures if any are needed; 

• What matters should be for the research/academic community to deal with, and which for Government.

That inquiry was ended prematurely by the dissolution of Parliament for the General Election in 2017. We decided to continue this inquiry in the new Parliament, drawing on the 82 submissions to our predecessors and a further 48 accepted and published by us. We held six oral evidence sessions, hearing from 27 witnesses. We are grateful for all these contributions to our work. 

We did not seek to investigate specific allegations of research misconduct or to re-open old cases. We and our predecessor Committee rejected several written submissions on that basis. However, a small number of cases are referred to in our report where they illustrate current issues relating to research integrity.

Its Conclusions and Recommendations are

1. The Science Minister’s initial reluctance to give evidence to our inquiry was disappointing, not least as it risked sending the message that the Government does not take this issue seriously. Nevertheless, we welcome the fact that that the Minister was subsequently willing to appear and are grateful for his responses to our questions. (Paragraph 8) 

2. The Government rightly invests considerable sums of public money in research, and investment in research and development as a proportion of GDP is set to grow further in the coming years. The Government needs to be confident that all possible steps are being taken to ensure that this money is not wasted through problems with research integrity, and that the research that it buys is as reliable as possible. While the Government should not seek to interfere directly in research matters or compromise the independence of universities, it should nevertheless maintain an active interest in supporting research integrity and ensuring that all elements of self-regulation are functioning well in order to get the best value possible from public investment. (Paragraph 9) Understanding and measuring ‘research integrity’ 

3. The available data on misconduct investigations suggest that serious research misconduct is rare, but it is impossible to be certain without better data. There is a mismatch between the number of investigations and the scale of reported temptations to compromise on research standards, the ‘reproducibility crisis’ in some disciplines, the growth in journal article retraction rates, and trends in image manipulation. We hope that most researchers will never succumb to the temptations to compromise on research standards, and some of these trends may be the product of increased detection and correction of honest errors. Nevertheless, it is worrying that there seem to be so few formal research misconduct investigations conducted by universities. Increases in the number of investigations should be seen as a healthy sign of more active self-regulation. Further work is needed to determine the scale of the problem. (Paragraph 28) 

The Concordat to Support Research Integrity 

4. Most universities take their research integrity responsibilities seriously, but progress in implementing the Concordat to Support Research Integrity across the whole sector is disappointing. Six years on from the signing of the Concordat, the sector as a whole still falls some way short of full compliance in terms of publishing an annual statement, which risks giving the impression of pockets of complacency. We were surprised by the reasons that some universities gave for not publishing an annual statement on research integrity as recommended by the Concordat. The majority of universities have successfully balanced transparency against confidentiality in producing an annual statement, but a few are lagging behind and see transparency as a threat to their public image. Publishing an annual statement is a positive opportunity for an institution to set out the steps that it is taking to safeguard research standards, as well as to report on the number of investigations. We were encouraged that our letter to all Universities UK members prompted some of them to take steps to improve their compliance with the Concordat. More leadership is required to drive the implementation of the Concordat across the whole of the research sector, and we return to this issue in Chapter 6. We welcome Universities UK’s plans to convene a Research Integrity Forum meeting to consider our recommendations relating to the Concordat and look forward to seeing the results of their work. (Paragraph 39) 

5. Compliance with the Concordat has technically been a condition of receiving funding from research councils and higher education funding councils since 2013, but meaningful sanctions have never been deployed. The Concordat contains mainly high-level statements rather than explicit measurable requirements, and comprehensive information on ‘compliance’ is not collected by the funders. We recommend that the signatories update and strengthen the Concordat by making the requirements and expectations clearer, and produce a route map and timetable for reaching 100% compliance with the strengthened version within the next year. UKRI should collect and publish details of universities that are not compliant. In particular, the Concordat should be strengthened in relation to training on research integrity (discussed in Chapter 4), processes for responding to allegations of misconduct (see Chapter 5), commitments to clinical trials transparency (which we will return to in a dedicated report) and publication of ‘negative’ research results. (Paragraph 43) 

6. We endorse the Government Chief Scientific Adviser’s call for Government departments to sign up to the Concordat on Research Integrity to ensure consistency of approaches to research governance. If the Concordat is suitably strengthened, as we recommend above, this will be a useful step forward. We look forward to receiving further details of actions taken by the departments in response to his initiative in the Government’s response to this report. (Paragraph 46) 

Supporting and promoting the integrity of research 

7. It is surprising that most UK universities are not subscribers to the UK Research Integrity Office. The result is that the profile and impact of UKRIO might be highest with the institutions which already choose to participate, rather than the ones that might need the most help. The default assumption for all universities should be that they are subscribers to UKRIO, unless they can explain why they do not need to use UKRIO’s advisory services. We recommend that the Government and Universities UK write jointly to all universities to encourage them to engage with UKRIO and consider subscribing to its services. (Paragraph 50) 

8. Creating a healthy ‘research culture’ is just as important as tackling lapses in research integrity, and would help ensure that a career in research is attractive to those who value rigour, accuracy, honest and transparency. We endorse Research England’s plans to require the REF 2021 assessors to consider how research integrity issues can be taken into account. We hope that this will underline the importance of research integrity to a healthy research environment, and counterbalance some of the pressures to compromise on integrity. For this to be successful it must be implemented in a way that encourages universities to be more transparent about research integrity and investigations, rather than an additional incentive to avoid drawing attention to lapses in integrity. (Paragraph 57) 

9. There is a need to understand more fully the effects of the current funding system on researcher and institutional behaviour, and consider how unwanted effects can be minimised. We recommend that UKRI commission research to understand the effects of incentives in the research system on researcher behaviour and assess where adjustments or counterbalances may be needed to support research integrity. (Paragraph 58) 

10. We are encouraged to hear that some universities make training in research integrity a mandatory part of doctoral studies and include it in their research supervisor training programme. It is important that the attitudes to research integrity transmitted to the next generation of researchers are the right ones, and that those supervising them are also suitably trained. We recommend that UKRIO provide guidance to universities on best practice in delivering training to doctoral supervisors. (Paragraph 66) 

11. The research councils do not have reliable information on what training is currently being delivered. The increased concentration of training, through ‘Centres for Doctoral Training’, presents an opportunity for monitoring whether suitable training on research integrity is being provided as part of a PhD. We recommend that UKRI assess whether suitable training is being provided in line with current requirements and report back to us on its findings. UKRI should also consider further the case for centralised provision of training on research integrity, or standards that could be set. (Paragraph 67) 

12. We recommend that UKRI consider how best to encourage research teams to engage with statisticians as part of their research, and how best to improve the statistical competencies of researchers in general. (Paragraph 68) 

13. We are encouraged to see moves towards open publishing of datasets, and steps being taken to improve reporting of research methods through reporting checklists. However, we also recognise the need for protocols for accessing research data to ensure that secondary analysis is conducted appropriately. The Centre for Data Ethics and Innovation should consider further how best to balance the need for data to be openly shared with the need to ensure that data is used responsibly in secondary analysis. (Paragraph 75) 

Detecting and responding to problems with research integrity 

14. There is a continuing need for publishers to invest in techniques and technologies to spot problems with research papers. While the purpose of peer review is not to detect fraud, the sector’s responsibility for the integrity of the research base includes taking reasonable steps to ensure that technology to detect problems is developed and put to good use. This may be an area in which market forces do not obviously support this investment of resource. A Concordat-style set of commitments in the academic publishing community to invest jointly in software for the detection of image manipulation—or common standards for checking images—may be required. We recommend that UKRIO convene a discussion with publishers to explore this. (Paragraph 82) 

15. Universities and other employers of researchers need to be able to demonstrate that they are following best practice in the way that investigations are conducted. The annual narrative report recommended by the Concordat (see Chapter 3) is one opportunity for institutions to review their processes and set out whether they reflect UKRIO’s guidance. Any suggestion that best practices are not being followed is a concern, particularly given the reputational risk of, for example, not using external panel members in some stages of the process. UKRIO’s guidance on misconduct processes was published in 2008; it is worrying that, ten years on, some institutions may not yet have acted on it. We recommend that following best practice in use of external panel members form an explicit part of a strengthened Concordat. (Paragraph 88)

16. Cases of researchers committing misconduct at a string of institutions suggest that either some universities are using non-disclosure agreements to keep misconduct quiet, or are not being sufficiently diligent in checking references when hiring researchers. Hiding misconduct through non-disclosure agreements is not acceptable, not least as it effectively makes the institution complicit in future misconduct by that individual. The Government should ask UKRI to consider how this practice can be effectively banned by institutions receiving public funds, and statements to this effect should be included in a strengthened Concordat (see Chapter 3). Meanwhile, there is a need for greater diligence in employers checking for past misconduct, and for previous employers fully disclosing such information. (Paragraph 101) 

17. Researcher mobility means that research misconduct investigations may require coordination between current and former employers, and between journals and funders. We are encouraged to see the Russell Group developing protocols for communicating with related parties when dealing with allegations that cross institutional boundaries. There is a need for all parts of the system to work together—including employers, funders and publishers of research outputs—but there appear to be problems with the required sharing of confidential information. We recommend that employers, funders and publishers of research work together to agree a protocol for information-sharing on researchers involved in research integrity problems in a way that meets employment protection legislation. Commitments in this vein could form part of a tightened Concordat (see Chapter 3). (Paragraph 106) 

Regulating research and researchers 

18. UK research has an enviable record of excellence and public trust, but this should not be taken for granted. There is a risk that public trust in science could be eroded in the future through high-profile examples of research misconduct, and a risk that this could lead to demands for knee-jerk and ill-advised changes to the research system in the UK. There is a need for the research community—including funders, publishers, and employers of researchers—to stay ahead of research integrity issues and how they are dealt with in public policy. The UK’s position of international high regard and public trust in researchers is strengthened if the community has the confidence to admit that no area of human endeavour is immune to misconduct and error at some scale. (Paragraph 110) 

19. We see a gap in the UK system for a body that can provide a means of independently verifying whether a research institution has followed appropriate processes to investigate misconduct, as in Australia and Canada. We recommend that the Government ask UKRI to establish a new national committee which could undertake this role. Employers should still have the first responsibility for investigating and taking action in response to allegations of research misconduct, but there should be a means of checking that processes have been followed appropriately. The new committee should be able to recommend to UKRI that funding be restricted or reclaimed if an employer has not followed appropriate processes in responding to research misconduct. While established under the auspices of UKRI, the new committee should have its own secretariat and sufficient independence from it so that it can act in cases where the research is not funded by UKRI. Without a body along the lines we suggest there is a risk that demands for statutory regulation will grow in the future. We recognise that there is a strong consensus within the community about the disadvantages that overbearing regulation could bring. We argue, however, that the onus is now on the community to support steps to avoid this. (Paragraph 122) 

20. We recommend that the national committee should also have formal responsibility for promoting research integrity, as the equivalent body does in Canada. Working with Universities UK, the new committee should take responsibility for driving the implementation of an updated and strengthened Concordat, and following up on other recommendations to the sector in this report. Meanwhile, UKRIO should continue its work in providing advice on research integrity and sharing best practice. It should now advise UKRI on the creation of the new body, including its work methods, drawing on the best international examples. (Paragraph 123) 

21. Transparency is a key feature of a healthy research integrity system. The new national research integrity committee we recommend should publish an annual report on the state of research integrity in the UK, looking across the whole of research, and collecting information on: retractions; misconduct investigations and their outcomes; Concordat compliance; and training undertaken. The data for this will come from university narrative statements and the aggregated data on screening-phase investigations that UKRI is now being provided with. The proposed national committee should also consider how best to engage industry with the issue of research integrity, and should incorporate meaningful information on this aspect in its annual report. (Paragraph 128)

IoT Privacy report

The 151 page  Clearly Opaque: Privacy Risks of the Internet of Things report by Gilad Rosner and Erin Kenneally comments

There have been many names for the IoT over time: ubiquitous computing, ambient intelligence, machine-tomachine communications, pervasive computing, and, most recently, cyberphysical systems. The terms emerged from various disciplines, but they all point in the same direction. These persistent attempts to find a suitable term for the phenomenon reveal an awareness that the world is in rapid transition towards more comprehensive monitoring and connectivity, that this will likely have a profound impact on our lives, and that it is important to start anticipating the potential consequences. Our physical and informational world is evolving, and with it, the concept of privacy as we know it.

The authors argue that

The IoT will expand the data collection practices of the online world to the offline world.  

— The IoT will enable and normalize preference and behavior tracking in the offline world. This is a significant qualitative shift, and a key reason to evaluate these technologies for their social impact and effect on historical methods of privacy preservation. The very notion of an offline world may begin to decline. 

The IoT portends a diminishment of private spaces. 

— The scale and proximity of sensors being introduced will make it harder to find reserve and solitude. The IoT will make it easier to identify people in public and private spaces. 

The IoT will encroach upon emotional and bodily privacy. 

— The proximity of IoT technologies will allow third parties to collect our emotional states over long periods of time. Our emotional and inner life will become more transparent to data collecting organizations. 

Given the likelihood of ubiquitous data collection throughout the human environment, the notion of privacy invasion may decompose; more so as people’s expectation of being monitored increases. 

— Much of consumer IoT is predicated on inviting these devices into our lives. The ability to know who is observing us in our private spaces may cease to exist. The IoT will hasten the disintegration of the ‘reasonable expectation of privacy’ standard as people become more generally aware of smart devices in their environments. 

When IoT devices fade into the background or look like familiar things, we can be duped by them, and lulled into revealing more information than we might otherwise. Connected devices are designed to be unobtrusive, so people can forget that there are monitoring devices in their environment. 

IoT devices challenge, cross and destabilize boundaries, as well as people’s ability to manage them. 

— The home is in danger of becoming a ‘glass house,’ transparent to the makers of smart home products. And, IoT devices blur regulatory boundaries – sectoral privacy governance becomes muddled as a result. 

As more and more products are released with IoT-like features, there will be an “erosion of choice” for consumers – less of an ability to not have Things in their environment monitor them. Market shifts towards ‘smart’ features that are intentionally unobtrusive lead to less understanding of data collection, and less ability to decline those features. 

The IoT retrenches the surveillance society, further commodifies people, and exposes them to manipulation. 

The IoT makes gaining meaningful consent more difficult. The IoT is in tension with the principle of Transparency. 

The IoT threatens the Participation rights embedded in the US Fair Information Practice Principles and the EU General Data Protection Regulation. 

IoT devices are not neutral; they are constructed with a commercial logic encouraging us to share. The IoT embraces and extends the logic of social media – intentional disclosure, social participation, and continued investment in interaction. 

The IoT will have an impact on children, and therefore give parents additional privacy management duties. 

— Children today will become adults in a world where ubiquitous monitoring by an unknown number of parties will be business as usual.

The report identifies 'emerging frameworks and strategies' regarding IoT privacy

Having broad non-specialist social conversations about data (use, collection, effects, socioeconomic dimensions) is essential to help the populace understand the technological changes around them. Privacy norms must evolve alongside connected devices – discussion is essential for this. 

Human-Computer Interaction (HCI) and Identity Management (IDM) are two of the most promising fields for privacy strategies for IoT. 

A useful design strategy is the ‘least surprise principle’ – don’t surprise users with data collection and use practices. Analyze the informational norms of personal data collection, use and sharing in given contexts. 

Give people the ability to do fine-grained selective sharing of the data collected by IoT devices. 

Three major headings for emerging frameworks and strategies to address IoT privacy: 

— User Control and Management
— Notification
— Governance 

User Control and Management Strategies 

— Pre-Collection

• Data Minimization – only collect data for current, needed uses; do not collect for future as-yet-unknown uses 

• Build in Do Not Collect ‘Switches’ (e.g., mute buttons or software toggles)  

• Build in wake words and manual activation for data collection, versus the truly always-on 

• Perform Privacy Impact Assessments to holistically understand what your company is collecting and what would happen if there was a breach 

— Post-Collection

• Make it easy for people to delete their data 

• Make it easy to withdraw consent 

• Encrypt everything to the maximum degree possible 

• IoT data should not be published on social media or indexed by search engines by default – users must review and decide before publishing 

• Raw data should exist for the shortest time possible 

— Identity Management

• Design strategies: > Unlinkability – build systems that can sever the links between users’ Emerging Frameworks and Strategies to address activities on different devices or apps >; Unobservability – build or use intermediary systems that are blind to user activity 

• Give people the option for pseudonymous or anonymous guest use 

• Design systems that reflect the sensitivity of being able to identify people 

• Use selective sharing as a design principle > Design for fine-grained control of data use and sharing > Make it easy to “Share with this person but not that person” 

• Create dashboards for users to see, understand and control the data that’s been collected about them 

• Design easy ways to separate different people’s use of devices from one another 

— Notification Strategies

• Timing has an impact on privacy notice effectiveness. 

• Emerging privacy notice types: > Just-in-time;  > Periodic;  > Context-dependent;  > Layered 

• Test people’s comprehension of privacy policies 

• Researchers are exploring privacy notification automation: > Automated learning and setting of privacy preferences;  > Nudges to encourage users to think about their privacy settings;  > IoT devices advertising their presence when users enter a space 

— Governance Strategies

• Creation of baseline, omnibus privacy laws for US 

• Regulations restricting IoT data from certain uses 

• Regulator guidance on acceptability of privacy policy language and innovation 

• Requirement to test privacy policies for user comprehension 

• Expansion of “personally-identifiable information” to include sensor data in the US 

• Policymaker discussions of the collapse of the ‘reasonable expectation of privacy’ standard 

• Greater use of the ‘precautionary principle’ in IoT privacy regulation 

• More technologists embedded with policymakers 

• Trusted IoT labels and certification schemes

Climate Change Litigation

'Climate Change and the Individual' by Margaret Rosso Grossman in (2018) 66 The American Journal of Comparative Law comments

 “Climate change, once considered an issue for a distant future, has moved firmly into the present.” Atmospheric and ocean temperatures are rising, “[p]recipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing.” The 2017 Climate Science Special Report describes the current state of scientific knowledge about U.S. and global climate change. The report concludes that “it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation.”

Global data show that 2016 was the warmest year on record and the third consecutive year for record global average surface temperatures. In the continental United States, 2016 was the second warmest year on record, after 2012, with higher than average precipitation and fifteen climate-related disasters including drought, wildfire, floods, and severe storms, which caused losses of more than $1 billion.

The emission of greenhouses gases (GHGs), which move about in the atmosphere, is a major cause of global climate change. GHGs absorb terrestrial radiation that leaves the Earth’s surface. Although GHGs “create the natural heat-trapping properties of the atmosphere” and are “necessary to life as we know it,” high concentrations of GHGs cause an increase in the Earth’s absorption of energy and the resulting increase in temperature referred to as global warming.

Recent research identifies deadly effects of climate change, “one of the biggest global threats to human health of the 21st century.” If global GHG emissions are not reduced, heat waves will affect 74% of the world’s population by 2100. Even with drastic GHG reductions, almost half of humans will face deadly heat. In Europe, increasing temperatures will result in weather disasters, especially heat waves and coastal flooding, and a sharp increase in climate-related deaths by 2100. By 2050, climate change may affect nutrition in developing countries as rising temperatures reduce availability of plant proteins.

Although a number of U.S. statutes govern human activities related to climate change, no comprehensive climate change legislation exists. Federal programs (including the Obama administration’s Climate Action Plan13), as well as regional, state, and local initiatives, promised to mitigate and adapt to the effects of climate change. Recent developments, however, have diluted federal efforts. For example, in March 2017, President Trump revoked significant Obama-administration climate change policies, including the Climate Action Plan and related strategies. This revocation and others that followed are likely to result in increased emissions and a failure to meet climate targets (e.g., energy efficiency, methane emissions).

Significantly, in June 2017, the United States announced its withdrawal from the Paris Agreement, a decision that triggered international condemnation, as well as criticism from state and local governments and large corporations in the United States. In August 2017, the United States notified the United Nations of its intent to withdraw from the Paris Agreement as soon as the United States is eligible, unless it “identifies suitable terms for reengagement.” The U.S. withdrawal was characterized as a “severe backwards move and an abrogation of its responsibility as the world’s second largest emitter . . . when more, not less, commitment is needed from all governments to avert the worst impacts of climate change.” Despite this withdrawal, however, the United States could meet its Paris goals through the efforts of cities, states, and businesses. The global crisis of climate change has affected the practice of law. Indeed, in recent years, climate change has engendered “a rapidly building wave of litigation” in the United States. Although the judiciary is “a latecomer to the crisis that has worsened in the hands of the legislative and executive branches,” litigation can play a role in forcing government regulatory action and perhaps in providing remedies for harm from GHG emissions. As commentators observed, “[t]he president might root out climate policy from executive branch decision-making, but he cannot unilaterally remove the issue from judicial consideration.”

This Report, guided by a questionnaire prepared for the Twentieth General Congress of the International Academy of Comparative Law, addresses the topic of climate change lawsuits and the individual. The questionnaire focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change or adaptation to its effects. It does not focus on legal persons, such as corporations and other legal entities. Of the hundreds of climate change cases filed in the United States, only a small number involve individual plaintiffs. Other cases involve environmental organizations that sue on behalf of their members, demanding mitigation or adaptation and sometimes damages for injury. To provide background, this Report first reviews possible causes of action to remedy climate change. It raises a number of difficult issues faced by plaintiffs in climate change litigation. The Report then reviews a number of cases brought by individual plaintiffs and environmental organizations against public and private actors.

Security Duty

'The Duty of Data Security' by William McGeveran in (2018) 102 Minnesota Law Review comments

As data breaches become larger and more frequent, the question naturally arises: what precautions does the law require of the data custodians who hold our personal information in their digital files? What is the legal duty of data security? According to some scholars and lawyers, the law is insufficiently specific, concrete, or uniform to answer that question. Attorneys representing companies that have been breached go so far as to argue that the duty of data security is “an unknown (and unknowable) standard.” Under this view, private entities warehouse vast quantities of personal data, but cannot possibly ascertain the obligations the law imposes on them to protect it. 

That claim is balderdash. This Article demonstrates that the law is already settling upon a well-defined, if context-dependent, duty of data security. It examines fourteen different sources of data security obligations for private companies in the United States, half of them formal legal rules and half derived from the private ordering of industry-based requirements. This analysis demonstrates how all these frameworks, selected to represent the breadth of data security obligations, are converging on a common set of standards. The numerous sources of a duty of data security sound together in harmony, not cacophony. The nascent consensus formulates a duty just as clear as countless other requirements of reasonableness that permeate the law. 

In addition, this Article identifies normative justifications for the content and nature of this emerging duty of data security, particularly its underpinning in principles of reasonableness and risk assessment. Indeed, the duty of data security is taking its early steps along a well-worn path in the law. It is being guided by deeply familiar legal forces, including the preference for standards over rules when governing fast-moving and complex subjects; the adoption of industry custom, which has shaped law from early contract doctrine to modern professional liability; and even a version of Judge Learned Hand’s cost-benefit calculus from the legendary Carroll Towing decision.