The conversation after Jones has been dominated by proposals that seek to assess and protect quantitative privacy by focusing on the informational “mosaics” assembled by law enforcement officers in the course of their investigations. We think that this case-by-case approach both misunderstands the Fourth Amendment issues at stake and begets serious practical challenges. Drawing on lessons from information privacy law, we propose as an alternative that legislatures and courts acting in the shadow of Jones focus on the technologies. Under this technology-centered approach, any technology that is capable of facilitating broad programs of continuous and indiscriminate surveillance would be subject to Fourth Amendment regulation. This does not mean that government would be barred from using these technologies. Rather, it would require that the terms of their deployment and use reflect a reasonable balance between privacy concerns and law enforcement’s interests in preventing, detecting, and prosecuting crime. This Article offers concrete proposals for how legislatures and courts might strike this balance while providing the clear guidance and predictability that critics of the mosaic theory rightly demand.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based approach to hate speech can foster respectful online discourse without suppressing valuable expression. To this end, we urge intermediaries to help address cyber hate by adopting accessible and transparent policies that educate users about their rights and responsibilities as digital citizens. Intermediaries’ options include challenging hateful speech by responding with counter-speech and empowering community members to enforce norms of digital citizenship.

At the same time, automation impairs participatory rulemaking, the traditional stand-in for individualized due process. Computer programmers routinely alter policy when translating it from human language into computer code. An automated system’s opacity compounds this problem by preventing individuals and courts from ascertaining the degree to which the code departs from established rules. Programmers thus are delegated vast and effectively un¬reviewable discretion formulating policy.

Professor Citron will be talking about a concept of technological due process that can vindicate the norms underlying last century’s procedural protections. A carefully structured inquisitorial model of quality control can partially replace aspects of adversarial justice that automation renders ineffectual. Her proposal provides a framework of mechanisms capable of enhancing the accuracy of rules embedded in automated decision-making systems

Although social and legal norms have dampened offline discrimination, the internet’s Wild West culture and architecture invites bigots to move their hatred to cyberspace. The Internet facilitates anonymity, loosening social norms that constrain noxious behavior. It brings people together – a benefit when used for good purposes but especially dangerous when cyber mobs band together. Moreover, unlike offline hate that loses its impact with time, online hatred can be permanent.

These are serious problems. Nonetheless, the public pays little attention to cyber hate. Law enforcement routinely trivializes cyber harassment of women and minorities, deeming it ranting victims can, and should, ignore. Police officers often refuse to pursue cyber harassment complaints on the grounds that the conduct is legally insignificant. Victims often do not pursue legal claims for fear that they won’t be taken seriously or that no law protects them. That is an unfortunate result of false information and mistaken assumptions—the law criminalizes cyber harassment and it may provide compensation for discrimination online.

Digital Discrimination aims to chart a way forward. Leaving well enough alone is not an option. The more that we ignore cyber hate, the more prevalent in mainstream social media it will become. Although law has an important role to play, the existing legal framework can only take us so far. Other institutions can, and should, tackle cyber discrimination, including online intermediaries, educators, and interest groups

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study of fusion centers suggests they are, in fact, mutually reinforcing. Too often, fusion centers’ structure has been based on clever legal strategies for avoiding extant strictures on information-sharing, rather than objective analysis of terror threats. The “Information Sharing Environment” created by fusion centers has short-circuited traditional modes of agency accountability. Our twentieth-century model of agency accountability cannot meaningfully address twenty-first century agency coordination.

A new concept of accountability—network accountability—is needed to address the shortcomings of fusion centers. Network accountability has technical, legal, and institutional dimensions. Technical standards can render data exchange between agencies in the network better subject to review. Legal redress mechanisms can speed the correction of inaccurate or inappropriate information. We also propose a robust strategy for institutionalizing these aspects of network accountability, based on recent regulatory reform.

Unfortunately, privacy tort law is ill-equipped to address these changes. Prosser built the modern privacy torts based on precedent and a desire to redress harm. Although Prosser’s privacy taxonomy succeeded in the courts because it blended theory and practice, it conceptually narrowed the interest that privacy tort law sought to protect. Whereas Warren and Brandeis conceived privacy tort law as protecting a person’s right to develop his “inviolate personality” free from unwanted publicity and access by others, Prosser saw it as addressing specific emotional, reputational, and proprietary injuries caused by four kinds of activities prevalent in the twentieth century. Courts have too often rigidly interpreted the four privacy torts, further confining their reach. As a result, Prosser’s privacy taxonomy often cannot address the privacy interests implicated by networked technologies.

The solution lies in taking the best of what Prosser had to offer—his method of borrowing from doctrine and focusing on injury prevention and remedy—while ensuring that proposed solutions are transitional and dynamic. Any updates to privacy tort law should protect the broader set of interests identified by Warren and Brandeis, notably a person’s right to be free from unwanted disclosures of personal information so that he can develop his personality. While leaking databases and certain online postings compromise that interest, we should invoke mainstream tort remedies to address them, rather than conceiving unattainable new privacy torts. In addition to supplementing privacy tort law with traditional tort claims, courts should consider the ways that the internet magnifies privacy harms to ensure law’s recognition of them.

This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.

In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value of privacy protections. His pragmatic approach, which includes a taxonomy of privacy problems, succeeds because it is as dynamic as it is functional. It is poised to respond to existing privacy issues, yet nimble enough to tackle emerging problems.

Without further guidance to policymakers about how to apply his framework, however, Solove’s proposal is susceptible to precisely the kind of non-pragmatic decision-making he eschews. It offers no safeguards, for example, to prevent decision makers from rendering judgments based on their overarching philosophies, preferences, or emotions, and it provides little advice to policymakers weighing competing privacy risks. In these respects, Solove’s approach would benefit from a more transparent decision-making process as well as rules of thumb intended to guide policymakers through some of privacy’s more complicated terrain. Solove provides an excellent aerial map of privacy, but to fulfill pragmatism’s promise, he needs to get closer to the ground.

This Essay argues that government should refrain from accessing individuals’ social media data on Government 2.0 sites. Agencies should treat these sites as one-way mirrors, where individuals can see government’s activities and engage in policy discussions but where government cannot use, collect, or distribute individuals’ social media information. A “one-way mirror” policy would facilitate democratic discourse, enhance government accountability, and protect privacy.

The trivialization of phenomena that profoundly impact women's basic freedoms is nothing new. No term even existed to describe sexual harassment of women in the workplace until the 1970s. The refusal to recognize harms uniquely impacting women has an important social meaning - it conveys the message that abusive behavior towards women is acceptable and should be tolerated.

Grappling with the trivialization of cyber gender harassment is a crucial step to understanding and combating the harm that it inflicts. My previous work Cyber Civil Rights explored law’s role in deterring and punishing online abuse. This Essay emphasizes what may be law’s more important role: its ability to condemn cyber gender harassment and change the norms of acceptable online behavior. Recognizing cyber harassment for what it is—gender discrimination—is crucial to educate the public about its gendered harms, to ensure that women’s complaints are heard, to convince perpetrators to stop their bigoted online attacks, and ultimately to change online subcultures of misogyny to that of equality.

General criminal statutes and tort law proscribe much of the mobs' destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim's employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

Today’s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

This Essay proposes opening up these black boxes to democratize agencies’ automated decision-making. In revealing the programmer’s instructions to the computer, open code shines light on important regulatory choices currently hidden from both elected policy-makers and the public at large. It creates new opportunities for participation by a broad network of programmers, who can contribute to the development of accurate and secure systems. Such feedback would exert pressure on agencies to fix problems at the margins that agencies might be inclined to ignore. Open code makes programming and system design expertise relevant and available to the administrative state. In short, open code governance provides a means to make agency decisions bound up in information systems more transparent, democratic, and legitimate.

The dichotomy between these procedural regimes has become outmoded. This century’s automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. Automated systems jeopardize due process norms. Their lack of meaningful notice, and a hearing officer’s tendency to presume a computer system’s infallibility, devalue hearings. Standard Mathews v. Eldridge cost-benefit analysis is ill-equipped to compare the high fixed cost of deciphering a computer system’s logic with the accumulating marginal benefit of correcting myriad inaccurate decisions. Automation also defeats participatory rulemaking. Code, not rules, determines the outcomes of adjudications. Programmers inevitably alter established rules when embedding them into code in ways the public, elected officials and the courts cannot review. Last century’s procedures cannot repair these accountability deficits.

A new concept of technological due process is essential to vindicate the norms underlying last century’s procedural protections. This Article shows how a carefully structured inquisitorial model of quality control can partially replace aspects of adversarial justice that automation renders ineffectual. It also provides a framework of mechanisms capable of enhancing the transparency, accountability, and accuracy of rules embedded in automated decision-making systems.