Articles privacy, the hacker way

Research output: Contribution to journalArticle

Abstract

This Article seeks to clarify the relationship between contract law and promises of privacy and information security. It challenges three commonly held misconceptions in privacy literature regarding the relationship between contract and data protection - the propertization fatalism, the economic value fatalism, and the displacement fatalism - and argues in favor of embracing contract law as a way to enhance consumer privacy. Using analysis from Sorrell V. IMS Health Inc., marketing theory, and the work of Pierre Bourdieu, it argues that the value in information contracts is inherently relational: consumers provide "things of value" - rights of access to valuable informational constructs of identity and context - in exchange for access to certain services provided by the data aggregator. This Article presents a contract-based consumer protection approach to privacy and information security. Modeled on trade secret law and landlord-tenant law, it advocates for courts and legislatures to adopt a "reasonable data stewardship" approach that relies on a set of implied promises - nonwaivable contract warranties and remedies - to maintain contextual integrity of information and improve consumer privacy.

Original languageEnglish (US)
Pages (from-to)1-68
Number of pages68
JournalSouthern California Law Review
Volume87
Issue number1
StatePublished - Jan 1 2013

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hacker
privacy
fatalism
landlord tenant law
marketing theory
law of obligations
data protection
consumer protection
Law
economic value
remedies
integrity
Values
health

All Science Journal Classification (ASJC) codes

  • Law

Cite this

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Articles privacy, the hacker way. / Matwyshyn, Andrea.

In: Southern California Law Review, Vol. 87, No. 1, 01.01.2013, p. 1-68.

Research output: Contribution to journalArticle

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