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Data Controllers as Data Fiduciaries: Theory, Definitions & Burdens of Proof
Full text linkAs more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different obligations on “data controllers” and “data processors.” However, there are shortcomings to this model that limit consumer rights and their ability to vindicate those rights. The Fiduciary Model has also received attention from lawmakers and scholars as an alternative model of regulation. The Fiduciary Model addresses gaps in the Rights/Obligations Model, but prominent critics have voiced skepticism about the workability of the Fiduciary Model. This paper’s contributions are threefold. First, this paper examines the distinction between “data controllers” and “data processors” in the GDPR and whether those terms are likely to apply in a functionally similar way in new U.S. state consumer privacy laws. As companies strategize about how tocomply with laws from a multitude of jurisdictions—and as states incorporate identical language into their own laws—understanding the similarities and differences between how such laws are applied will be crucial. Second, this paper furthers the debate about the workability of the Fiduciary Model by proposing that “data controllers,” as defined in the GDPR and U.S. state laws, should be considered “data fiduciaries.” This definition offers two benefits: (1) defining data fiduciaries as data controllers provides a workable definition that corresponds with fiduciary theory, and (2) harmonizing U.S. and GDPR law. Finally, this paper will argue that companies subject to state consumer privacy laws should be considered “data controllers” by default and bear the burden of rebutting this presumption. This presumption reinforces the substantive policy behind consumer privacy law, accounts for the probability that parties violating consumer privacy laws will most likely be data controllers, and allocates the burden to the party with superior access to the evidence
Union Autonomy and Federal Intrusion
Full text linkUnion autonomy, a critical aspect of the health and growth of unions and employee power broadly, is weakened by (1) the Department of Justice’s (DOJ) attempts to target organized crime through civil Racketeer Influenced and Corrupt Organizations Act (RICO) litigation against unions and (2) the creation of federal trusteeships in settlement, both of which can be analyzed through litigation between the DOJ and the International Brotherhood of Teamsters (Teamsters or IBT) at the end of the 20th century. The field of compliance offers a solution to prevent these breaches of union autonomy. Relying on the Federal Sentencing Guidelines and the Environmental Protection Agency’s (EPA) Audit Program, this Note recommends a new program to the National Labor Relations Board (NLRB). The NLRB should incentivize unions to implement internal compliance programs drawing inspiration from corporate America, as these businesses have historically faced far less federal intrusion than unions
Machine Manipulation: Why an AI Editor Does Not Serve First Amendment Values
Full text linkThe past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. While courts have thus far not given much attention to the implications of this use, this Note argues that using AI for editorial decision-making should not be entitled to the same protection as a human decision-maker. After introducing how social media platforms employ AI in their editorial operations, it outlines the foundational values of democratic self-governance, the marketplace of ideas, and autonomy underlying the First Amendment, and assesses how the use of AI impacts those values. The Note concludes that the ability of AI to manipulate human behavior and preferences, combined with the delegation of decisional autonomy from humans to AI, harms the foundational First Amendment values. Therefore, the use of AI is not deserving of the same protection as human editorial decision-making
Barring Judicial Review
Full text linkWhether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of agency action, which this Article refers to as “judicial review bars.” The findings reveal that express preclusion is a phenomenon: at least 190 statutory provisions expressly bar judicial review of agency actions. This Article then creates a taxonomy of actions barred from review. Most review bars target internal management decisions, such as decisions about how to allocate resources, set priorities, and manage personnel.
Because judicial review has traditionally been considered a core tool for overseeing agencies, this Article next investigates alternative oversight tools for actions barred from judicial review. When judicial review is barred, other structures often exist for political oversight, internal supervision, and public participation. Strikingly, review bar statutes often expressly create structures to facilitate such oversight. Alternative oversight structures include requirements to send reports to Congress, establish internal procedures, consult with stakeholders, and publish decisions. Furthermore, many review bars involve government spending programs, which are subject to appropriations oversight. Like judicial review, alternative oversight tools play an important role in promoting democratic values of deliberation, inclusiveness, and public accountability in the administrative state. A recent example at the Patent Office illustrates how the combination of review bars and alternative oversight tools can balance efficient implementation of programs with the need to protect individual interests and democratic values. Given the significance of alternative oversight tools in monitoring agencies, this Article argues that courts should consider the availability of alternative oversight tools when construing review bars, and policymakers should do the same when designing regulatory programs
Section 230\u27s Debts
Full text linkMuch attention has been paid to the unknown First Amendment permissibility of the government regulating social media platforms\u27 carriage practices. The Supreme Court\u27s impending resolution of the NetChoice cases poses a high-stakes First Amendment question: Can the government permissibly dictate what types of content platforms publish?
But how did the First Amendment stakes in NetChoice get so high? This Article identifies a long-standing gap in the Supreme Court\u27s First Amendment jurisprudence for platform regulation following its decision in Reno v. ACLU. This Article attributes that gap to the accumulation of both interpretive and legislative debts by Section 230 of the Communications Act that effectively have obviated the development of a substantive law of platform regulation. This Article explores three case studies for paying down Section 230\u27s debts: copyright law, the Fight Online Sex Trafficking Act (FOSTA), and the Florida and Texas social media laws at issue in NetChoice. Each case study highlights the possibilities and challenges for the tripartite gauntlet of substantive law, the First Amendment, and Section 230 itself that courts and legislatures must run to regulate platform carriage and moderation decisions
ChatGPT, AI Large Language Models, and Law
Full text linkThis Essay explores Artificial Intelligence (AI) Large Language Models (LLMs) like ChatGPT/GPT-4, detailing the advances and challenges in applying AI to law. It first explains how these AI technologies work at an understandable level. It then examines the significant evolution of LLMs since 2022 and their improved capabilities in understanding and generating complex documents, such as legal texts. Finally, this Essay discusses the limitations of these technologies, offering a balanced view of their potential role in legal work
