Cornell Tech | NYU
The Great Regulatory Dodge
This talk will feature some preliminary thoughts regarding how the current regulatory paradigm in privacy law enables digital technology companies to “dodge” privacy regulations with which other companies offering similar services must comply, and exploring how this “dodge” results in unfair rules for companies and undermines privacy protection for people.
Analyzing how the current privacy regime facilitates the dodge is important for diagnosing the shortcomings of existing laws, for revealing harmful effects on individuals and social institutions, and for developing effective alternatives. Such diagnosis gains urgency in light of the growing scholarly and policymaker consensus around privacy law reform. The talk develops its analysis from case studies of specific privacy laws and the systems, practices, and business models that are tailored to dodge them. It explains why recent efforts to limit anticompetitive (monopolistic) practices are not well matched to the practice we have identified as “regulatory dodge,” even though they may be protective against other harms. It also argues that omnibus privacy laws, such as the California Consumer Privacy Act (“CCPA”), may have positive impact but not target the specific challenges of the “dodge.”
Why is privacy dodge different from regulatory avoidance generally? All manner of corporate actors seek to minimize their regulatory costs and gain competitive advantage by doing so; and technologies and business practices invariably evolve in the shadow of the legal rules that govern them. The talk will focus on how digital firms leverage interdependent affordances of contemporary digital technologies, prevailing privacy laws, and information industry business models to do so within the particular context of the digital economy. A full appreciation of distinctive features of the data economy and the digital systems on which it operates are critical to appreciating the privacy regulatory dodge, how to address it, and most importantly, why it cries out for our attention.
Salomé Viljoen is a Research Fellow at Cornell Tech's Digital Life Initiative as well as at NYU's Information Law Institute. She is also an Affiliate and former Fellow at the Berkman Klein Center for Internet and Society at Harvard University. Salome’s research focuses on the intersection between law, technology and inequality, and draws together multidisciplinary approaches from political economy, law (particularly critical legal thought), and legal philosophy. She studies how the law governing the data economy structures current data collection and sharing practices, and explores the empirical and normative underpinnings of current data regimes as well as proposed alternatives. She also studies the distributive impacts of privacy and cybersecurity law.
Salome was previously an associate at Fenwick and West, LLP, where she worked with technology company clients on a broad variety of matters. She has a JD from Harvard Law School, an MsC from the London School of Economics, and a BA in Political Economy with minors in Mathematics and History from Georgetown University.