David S. Levine, Elon Law’s Jennings Professor and Emerging Scholar, warns in a new journal article that both companies are using amorphous confidentiality and privacy claims to withhold important information about their products, making it nearly impossible to hold public debates about accountability and safety.
In “Confidentiality Creep and Opportunistic Privacy,” which appears in the most recent issue of the Tulane Journal of Technology and Intellectual Property, Associate Professor David S. Levine identifies and analyzes two recent information control developments: untethered, unsupported and unanalyzed claims of information “confidentiality,” and amorphous privacy claims.
The article by Elon Law’s Jennings Professor and Emerging Scholar argues that the growing use of such corporate practices laws in the United States can “create a safe harbor from public oversight and knowledge.”
To prove his point, Levine cites recent history regarding efforts to hide the chemical formula used by hydraulic fracturing energy companies to siphon oil and natural gas from the earth, and current challenges involving the algorithms that control Google’s and Uber’s self-driving cars, and the algorithms used by Facebook to determine what information users receive and from what sources.
Those companies have been reluctant to share the information behind their technological innovations, Levine writes. Competitive advantage is one reason. Another is the complexity of the information itself. Levine notes that Google has even taken a “Google knows best” approach for not sharing information that could shape the public discourse over who, exactly, bears responsibility for the actions of self-driving vehicles, and what capabilities the public would like such machines to possess
What does it all mean? Without the information that shapes everyday activities and commercial products with the potential to harm the public, those who might regulate behaviors lack the ability to do so. Nor can a robust debate be conducted over the risks that come with technological advances, as have been realized by ongoing investigations into Russian interference with the 2016 election.
“Lack of transparency raises important questions about public accountability, especially in an era where hostile foreign powers seek to secretly alter the outcome of domestic elections through misinformation campaigns,” Levine concludes. “Whenever secret algorithms make inherently subjective decisions, we wonder how we might predict and address the next decision. If an algorithm is opaque, it becomes impossible for the public to understand the rationale behind any particular outcome or determine if, when, and how algorithms are misused.
“In order to bring us closer to the ability of understanding how technology is integrated into our lives, we need to identify the role of confidentiality creep and opportunistic privacy and to recognize the differences between justified and dubious confidentiality and privacy claims.”
Levine was named Elon Law’s Jennings Professor and Emerging Scholar in 2017, which recognizes a young faculty member who through his or her research has shown extraordinary promise as a teacher and a scholar. He is an affiliate scholar at the Center for Internet and Society at Stanford Law School and was a 2016-2017 Visiting Research Collaborator at Princeton University’s Center for Information Technology Policy.
Levine is also the founder and host of Hearsay Culture on KZSU-FM, an information policy, intellectual property law and technology talk show named as a top five podcast in the ABA’s Blawg 100 of 2008.
His scholarship focuses on the operation of intellectual property law at the intersection of technology and public life, specifically information flows in the lawmaking and regulatory process and intellectual property law’s impact on public and private secrecy, transparency and accountability.