Cyber & Privacy

Topics

We live in a society in which personal information is increasingly entrusted to third parties in exchange for innovative new services. This creates both an opportunity for bad actors to steal sensitive information and a risk that this information will be misused or leaked. What is the most effective way to balance these risks against the innovation the data economy provides? Is there a role for federal regulatory agencies in this area?

Potential Constitutional Conflicts in State and Local Data Privacy Regulations

December 2, 2019

This paper lays out a set of constitutional concerns pertaining to certain new state and local regulations on data privacy. Do these new rules impinge on free speech, violate the dormant commerce clause, or are they preempted by other federal laws?

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When Considering Federal Privacy Legislation

December 4, 2018

In this paper, Neil Chilson explores modern conceptions of privacy, examines methods of protecting privacy, and offers recommendations for those considering legislative privacy proposals.

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The GDPR and the Consequences of Big Regulation

July 5, 2018

In this paper, Matthew Heiman provides a brief overview of the EU’s General Data Privacy Regulation (GDPR), discusses how the GDPR differs from previous European privacy laws, and highlights six consequences of the GDPR for companies and consumers worldwide.

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Modern Privacy Advocacy: An Approach at War with Privacy Itself?

June 12, 2018

In this paper, Justin “Gus” Hurwitz and Jamil Jaffer paper argue that there is a fundamental incoherence both of privacy as a concept and the modern debates around that concept, and that this incoherence leads privacy advocates to “take positions that while appearing on the surface to protect privacy actually serve to undermine it (or aspects of it) in the long-run.”

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Regulators in Cyberia

July 24, 2017

The authors of this paper discuss the negative and sometimes unintended consequences that regulations can have on America’s most dynamic and fastest growing industry: the technology sector.

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Deep Dive Episode 195 – President Biden’s Executive Order on Foreign-Controlled Apps

September 2, 2021

An expert panel breaks down Biden’s executive order on foreign-controlled apps and its implications for relations between the United States and its foreign adversaries.

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Deep Dive Episode 182 – Cybersecurity Threats and the Regulatory Response

June 24, 2021

Stewart Baker and Tatyana Bolton trade insights on the Biden administration’s potential policy responses to the cybersecurity threats facing the United States.

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Deep Dive Episode 179 – Artificial Intelligence and Bias

May 17, 2021

Experts discuss concerns about artificial intelligence systems’ potential biases against racial minorities and other identity groups.

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Deep Dive Episode 163 – Shapers of Cyber Speech: Silicon Valley and American Discourse

February 23, 2021

Experts debate the pros and cons of regulatory proposals aimed at curbing social media content moderation.

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Deep Dive Episode 147 – The State of State Data Privacy Laws Post-2020 Election

November 30, 2020

An expert panel discusses what state data privacy actions mean for the debates surrounding data privacy as well as what might be anticipated in the next sessions of Congress and state legislatures.

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Deep Dive Episode 141 – Interoperability and Data Sharing: An Antitrust Remedy in Search of a Market Problem?

October 26, 2020

An expert panel discusses the use of portability and interoperability mandates in competition law.

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Deep Dive Episode 139 – Implications of Data Portability: A Consumer Protection Tool or Burden?

October 19, 2020

An expert panel discusses the consumer protection and privacy implications of data portability.

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Deep Dive Episode 123 – Antitrust Investigations into Big Tech Companies

August 6, 2020

This live podcast explores what investigations into big tech tell us about innovation and antitrust, as well as the current concerns regarding these firms’ market power and conduct.

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Deep Dive Episode 117 – How to Approach Data Collection and Breaches in the Age of COVID-19

June 22, 2020

What are the data privacy and security implications for widespread data collection for COVID-19 contact tracing? Drew Bagley, Neil Chilson, and Roger Klein discuss.

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Deep Dive Episode 115 – Public-Private Partnerships: The Future of Cybersecurity?

June 1, 2020

Are public-private partnerships the best way to fight cybercrime? If not, can the government alone protect the nation from cybercrime? If these partnerships are the way of the future, how could they be improved? Dmitri Alperovitch and Jamil Jaffer discuss these important questions and more.

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Deep Dive Episode 114 – Is Artificial Intelligence Biased? And What Should We Do About It?

May 29, 2020

It’s not hard to find patterns in AI decisions that have a disparate impact on protected groups. Is this bias?  And if so, whose? Stewart Baker, Curt Levey, and Nicholas Weaver discuss.

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Explainer Episode 14 – Options for Data Privacy Enforcement

May 22, 2020

How can data privacy enforcement provide clarity for businesses while protecting the public from harm? What might be the best enforcment options available to the FTC and state attorneys general going forward? Jennifer Huddleston and Ian Adams discuss.

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Explainer Episode 13 – COVID-19 Contact-Tracing and Data Privacy

May 12, 2020

In this episode, Jennifer Huddleston and Brent Skorup discuss how contact-tracing might work here, what privacy concerns it might involve, and what it means for data privacy going forward.

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Deep Dive Episode 109 – Regulating by Consent Agreement: Examining FTC’s YouTube Settlement and Beyond

May 4, 2020

This episode explores FTC settlements and consent decrees, including the YouTube case and what it means for FTC enforcement going forward.

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Deep Dive Episode 106 – Should Big Tech Platforms Be Viewpoint Neutral? Should the Government Care?

April 21, 2020

On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. This episode features audio from the second panel.

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Deep Dive Episode 103 – Ajit Pai: The FCC and the Pandemic

April 13, 2020

Listen as Federal Communications Commission Chairman Ajit Pai discusses how the FCC is addressing the COVID-19 pandemic. What measures has the FCC taken to date, and what is planned in the future?

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Deep Dive Episode 95 – Update on FISA Reauthorization and Reform

March 16, 2020

In this episode, Ashley Baker and Nathan Leamer discuss the mechanics and processes of FISA, recent controversies, and issues Congress will consider as it determines whether and how to renew these key provisions.

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Explainer Episode 11 – GDPR Compliance and Cybersecurity Concerns

February 18, 2020

In this episode, Ashley Baker and Neil Chilson discuss the implications for data security under recently-enacted privacy laws.

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Deep Dive Episode 86 – Amazon’s Case Against Trump

January 28, 2020

Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.

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Explainer Episode 9 – Biometric Information Privacy Act

December 12, 2019

This episode explores the implications of private rights of action under laws like Illinois’ Biometric Information Privacy Act. Are the paramaters around these private rights of action too vague and susceptible to abuse? Experts discuss this question and more.

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Explainer Episode 7 – Carpenter v. United States

November 18, 2019

In this episode, Ashley Baker and Jennifer Huddleston discuss the implications of the famous privacy case, in which the Supreme Court decided that the warrant-less seizure of the plaintiff’s cell phone records violated his Fourth Amendment rights.

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Explainer Episode 6 – Regulating Biometric Access Technologies

November 13, 2019

With emerging debates around facial recognition technology, the issue of regulating biometric access technologies has become more prominent. San Francisco, notably, has banned government use of facial recognition, and states like Illinois and Texas have also begun more aggressive regulations on biometrics. The implications of these technologies and the rules to limit their use with regard to civil liberties are explored and explained in this podcast.

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Deep Dive Episode 75 – Spectrum Wars

October 22, 2019

Is there a clear and coherent path forward on the assignment or repurposing of spectrum? Perhaps as importantly, who has the authority and expertise to decide?

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Deep Dive Episode 72 – The Net Neutrality Saga: Mozilla v. FCC

October 10, 2019

In this episode, a panel of legal and economic experts share their views of the court’s reasoning and of the implications of this Mozilla v FCC case upon the on-going net neutrality debate.

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Deep Dive Episode 68 – Challenges in Regulating Cybersecurity at the Department of Defense

September 20, 2019

In this episode, experts in cyber-security law discuss the implications of recent changes to the internal rules that govern the information systems of contractors in the DoD supply chain.

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Deep Dive Episode 41 – General Data Protection Regime & California Consumer Privacy Act

April 2, 2019

In this episode, Anna Hsia, Chris Riley, Gus Hurwitz, Thomas Hazlett, and Matthew R.A. Heiman discuss the implications of internet privacy legislation on innovation, small businesses, and consumer protection.

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Deep Dive Episode 35 – Examining the California Consumer Privacy Act

September 5, 2018

Justin “Gus” Hurwitz (University of Nebraska College of Law), Eric Goldman (Santa Clara University School of Law), and Lindsey L. Tonsager (Covington & Burling) discuss the substance of the California Consumer Privacy Act (including recent amendments), the process that led to its enactment, and how it is likely to affect future privacy regulation in the United States.

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Deep Dive Episode 34 – Net Neutrality and Federalism

July 13, 2018

Justin “Gus” Hurwitz (University of Nebraska College of Law), Brent Skorup (Mercatus Center), and Geoffrey A. Manne (International Center for Law & Economics) discuss questions surrounding recent state efforts to enforce net neutrality principles after the FCC’s decision in 2017 to eliminate common carrier regulations.

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Deep Dive Episode 32 – What to do about Facebook: On Data Privacy and the Future of Tech Regulation

June 7, 2018

Matthew R. A. Heiman (National Security Institute), Thomas Hazlett (Clemson University), Jamil N. Jaffer (National Security Institute), and Megan Stifel (Atlantic Council) discuss Facebook, data privacy, and the future of tech regulation.

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Deep Dive Episode 15 – Exploring Net Neutrality and the Implications of Repeal

December 13, 2017

Brent Skorup (Mercatus Center) discusses the history of the net neutrality movement, the 2015 rules, the First Amendment issues at stake, and the effect of repealing the rules.

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Deep Dive Episode 14 – Discussion on the Wassenaar Arrangement

November 3, 2017

Stewart Baker (Steptoe & Johnson), Alan Cohn (Steptoe & Johnson), and Matthew R. A. Heiman (Johnson Controls) discuss the Wassenaar Arrangement, which governs international export controls for “intrusion software,” and its regulatory effects.

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Deep Dive Episode 7 – IoT: Rise of the Machines?

July 27, 2017

Paul Rosenzweig (Red Branch Law & Consulting) and Suhail A. Khan (Microsoft) discuss the Internet of Things, the risks it potentially poses, and the role of government in mitigating these risks.

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Deep Dive Episode 5 – LabMD v. FTC: A David Against Goliath Story

July 18, 2017

Justin “Gus” Hurwitz (Nebraska College of Law) and Michael Daugherty (LabMD) discuss Michael’s experience defending his medical testing lab against allegations by the FTC that it had deficient cybersecurity practices.

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President Biden’s Executive Order on Foreign-Controlled Apps

September 2, 2021

An expert panel breaks down Biden’s executive order on foreign-controlled apps and its implications for relations between the United States and its foreign adversaries.

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Net Neutrality and the Evolving Internet

July 1, 2021

Does net neutrality improve or hinder competition? Is it better for the consumer?

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Artificial Intelligence and Bias

May 17, 2021

Experts discuss concerns about artificial intelligence systems’ potential biases against racial minorities and other identity groups.

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Shapers of Cyber Speech – Silicon Valley and American Discourse

February 16, 2021

What are the realistic regulatory options for curbing Silicon Valley’s influence on the national discourse? What are the potential downsides of these options?

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The Price of Privacy: A Debate over Corporate Surveillance

September 16, 2020

Data is being collected on each of us every day by the apps that we use, the websites that we visit, and the services we subscribe to. How is this data used by companies and organizations? What is the difference between data security and data privacy? Where should the balance be struck between privacy and the benefits of increased data collection? This video will discuss these questions and more.

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Government Surveillance: The National Security Perspective

May 26, 2020

Many national security experts argue that lawful surveillance activities, such as those authorized by the Foreign Intelligence Surveillance Act (FISA), are necessary to protect the national security of the United States.

In this Fourth Branch video, Matthew Heiman takes a deep dive into this issue from the national security perspective.

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Government Surveillance: Security v. Liberty?

February 5, 2020

In this Fourth Branch video, Matthew Heiman and Julian Sanchez debate the pros and cons of government surveillance and Faisal Gill, a former Department of Homeland Security official who was surveilled by the federal government beginning in 2006, tells his story.

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Pepperdine Law Review’s 2019 Symposium: General Data Protection & California Consumer Privacy Act

March 21, 2019

Today’s regulatory landscape presents challenges for public and private entities. Private actors are often faced with conflicting, ambiguous, or altogether absent regulatory frameworks. Is it possible for them to overcome these challenges while delivering the creativity and innovation the marketplace demands? How can government regulators and legislators avoid stifling opportunity, function more efficiently, and enact and enforce sensible and effective regulatory schemes?

Pepperdine Law Review’s 2019 Symposium, in partnership with the Regulatory Transparency Project, explored these vital questions from both the academic and practical perspectives. The first panel of the symposium focused on the General Data Protection and California Consumer Privacy Act.

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Reboot 2018: Are We Headed for a U.S. General Data Protection Regulation (GDPR)?

October 24, 2018

With continued scrutiny over social media companies’ data practices, states are stepping in to pass aggressive new privacy laws. For instance, the recently enacted California Consumer Privacy Act of 2018 will be the toughest data privacy law in the nation when it goes into effect in 2020. But with fears over navigating a patchwork of inconsistent laws, tech companies are increasingly interested in a federal privacy bill that will preempt the states. What might this look like, how likely is it to happen in the next Congress, and what will it mean for consumers?

The Regulatory Transparency Project co-sponsored the Lincoln Network’s Reboot 2018 conference.

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2018 JLEP Symposium: 21st Century Business Models Meet 20th Century Regulation

March 7, 2018

Government regulation is intended to improve the efficiency of markets and protect people from harms they cannot identify or prevent on their own. But, for decades, advocates have debated whether the regulatory process and rules developed through it are too strict or too lax; whether they properly account for all the things society values; and even whether they make society better or worse off on balance. The Journal of Law, Economics & Policy’s Symposium on Regulatory Reform, Transparency, and the Economy explored these and related questions as leading scholars and practitioners examined a number of recent regulatory proposals impacting a broad swath of the American economy – from banking and finance to energy and the environment, and from employment law to the internet economy. Speakers considered and debated how well these proposals would perform their intended functions and how they might be improved.

The symposium featured discussions of research papers prepared by experts working on the Federalist Society’s Regulatory Transparency Project. The proceedings of the Conference were published in a special symposium issue of George Mason’s Journal of Law, Economics & Policy.

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New Webinar: Executive Order on Foreign-Controlled Apps

Matthew R. A. Heiman

October 1, 2021

In June, President Biden issued a new executive order directing the federal government to review the security threats posed by foreign-controlled software applications. On September 2, Matthew Feeney (Cato Institute) moderated an insightful discussion on the topic featuring Jennifer Hay (DataRobot), Jamil Jaffer (National Security Institute), and Margaret Peterlin (Texas A&M University)…

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Two Useful Pieces of Commentary on Net Neutrality

Matthew R. A. Heiman

August 3, 2021

Matthew Heiman points to two recent items on net neutrality from Tom Hazlett.

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What the Biden Administration May Bring for Tech Policy

Jennifer Huddleston

January 28, 2021

“The Biden administration should carefully consider the significant tradeoffs regulation can have and embrace bipartisan opportunities to build on the United States’ innovation-friendly approach.”

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The FCC Should Not Engage in Section 230 Rulemaking

Jennifer Huddleston

October 6, 2020

Governing the Internet: An FCC decision to engage in changing Section 230 would not only be concerning for First Amendment principles, but also should raise concerns about the expansion of the administrative state and the intrusion of government into private actions.

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Examining the California Consumer Privacy Act

Matthew R. A. Heiman

April 10, 2019

In a new teleforum, Professor Eric Goldman, Lindsey Tonsager, and moderator Professor Gus Hurwitz discuss the California Consumer Privacy Act (CCPA).

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Modern Privacy Advocacy

Matthew R. A. Heiman

June 12, 2018

In their thought-provoking essay, Gus Hurwitz and Jamil Jaffer explain that orthodoxy in the defense of privacy, a term that is ill-defined, may undermine the very value it tries to serve.

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Letter to Congress: Support an Open and Free Internet

Richard Epstein

March 16, 2018

We support a free and open Internet and we oppose utility regulation of the most dynamic communications platform the world has ever seen.  For these reasons, we encourage Congress to oppose the adoption of a CRA resolution to overturn the RIF Order.

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