»  Updates

Note: This is the webpage for a class from the past that has ended. Information about current classes is available here.

Past final exams: I have posted the past final exams here: fall 2017; fall 2016. (11/28)

Make-up class: We will have a make-up class on Monday, November 19, from 3:00 to 5:00 pm, in the Wood Boardroom. (11/7, 11/14)

Finland’s tax system: The New York Times published this fun story about Finland’s public tax info today. (11/1)

Final exam scheduling: The final exam has been scheduled for Saturday, December 15. It will be emailed out by the Registrar’s office at 9:00 am and will be due back, also by email, at 5:00 pm.

Georgetown tech writing competition: The Georgetown Law Technology Review is holding a writing competition for students writing on topics relating to “artificial intelligence, machine learning, the use of data analytics and/or algorithmic decision-making.” If you’re interested, either for a paper for this course or for a Law Review or IDEA note, I would love to do whatever I can to help you enter and win! Let me know.

Privacy job alert: The International Association of Privacy Professionals — which is located in Portsmouth — is hiring Westin Fellows. IAPP is great, and if you have any interest in working in privacy law, it’s a great place to start.

»  Overview

Privacy is the study of society’s efforts to draw boundaries between different contexts in which information flows. In the last few decades, privacy law has gone from being a minor issue largely confined to a few specific industries to one of the most important and pressing issues for businesses, consumers, and government officials of all kinds. This course will survey legal regimes governing the collection, use, and dissemination of information. Topics of discussion will include information dissemination and the First Amendment, associational privacy, the privacy torts, consumer privacy on the internet, the role of the Federal Trade Commission, medical privacy, government surveillance and the Fourth Amendment, privacy and national security, and international privacy regimes.

»  Class meetings and office hours

We will meet on Wednesdays from 3:00 to 5:00 p.m. in the Wood Boardroom. On a few occasions, I may need to cancel class because of a conflict; when this happens, we’ll make up those sessions at times announced in class and posted on this site. We also may need to move one or two classes so the Wood Boardroom can be used for other events. So far, I know that we will cancel class on September 5 and that we will meet in room 102 on October 3.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 210) and chat or just grab some candy. This semester, I should be in the office most Monday, Tuesday, and Wednesday afternoons, and some Thursdays; if you’d like to set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu.

»  Materials

The casebook is Solove & Schwartz, Information Privacy Law (6th ed. 2018). List price for the book is $244. On Amazon, as of this writing, the book costs about $244 (new) or $175 (used), or it can be rented for about $120. I apologize for the cost; I would normally avoid assigning a brand-new edition, but there are enough recent, important changes in privacy law (e.g., Europe’s new General Data Protection Regulation) that an older book wouldn’t work well. Professor Solove also maintains a website for the book, which contains links to privacy statutes, organizations, and various other resources.

If you exercise the option to write a substantial paper (see below), you’re also going to want a copy of Eugene Volokh’s book Academic Legal Writing. (It doesn’t really matter which edition, though later is probably at least a little better.)

In addition to the casebook, I will post links to other readings and assignments on this site. I will not be using Canvas or a similar system.

»  Attendance, grading, and collaboration policies

Regular attendance is required, and under the standard ABA rules, you may be barred from taking the examination and receiving credit for the course if you miss more than 20% of class sessions. Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct. An occasional absence is fine, but please let me know in advance.

Because I want to encourage an open and meaningful class discussion — about which more shortly — out of respect for your fellow students’ privacy, I will not be recording class sessions, and I ask that you do not do so. (New Hampshire, for what it is worth, is an all-party-consent state.)

Your course grade will be based on three components:

We are all here to learn about the law, and in general I am all for anything that helps further that goal. This means that, except where expressly told otherwise, you’re free to collaborate with each other and to consult whatever sources you wish in your work for this class. One of those express exceptions will be the final exam. Another is the short discussion papers; for those, you are free to consult whatever sources you wish and discuss the assignment with other students, but the writing you submit must be entirely your own.

»  Short discussion papers

For each of the four short discussion papers, you should read the assignment for the week and write a short essay (aim for about 1,000 words) on something related to that week’s subject. These papers do not need to be formal or include a bunch of citations and footnotes; prioritize thoughtfulness over formality. The goal is not to just respond to or regurgitate the readings. Instead, try to bring something new to the table — an example, case study, new idea, or proposal that goes beyond what’s covered in the readings. This will likely require doing some Google research or outside reading in addition to the week’s assignment. This also means that your paper will likely be far narrower than the week’s reading; that’s fine, since the goal is to spark interesting discussion.

You can choose any four weeks (after the first week) to do these papers, but you must do at least one by the end of September and at least two by the end of October. They are due by noon on the day before class three hours before class (updated 9/19/18), by email to me at roger.ford@nulllaw.unh.edu.

Important formatting demands about which I am irrationally insistent: Send me your discussion paper as a PDF with the filename “{your last name} week {number}.pdf” (e.g., “Ford week 2.pdf”) and the email subject line “Privacy week {number}”. Do not vary these at all; do not include your name in the subject line or your first name in the filename or insert random hyphens or anything like that. And in the document itself, please number your pages; put your name at the top of every page; and include some sort of title. I ask for these small courtesies because they make it easier for me to find your paper in my email and sort all the files once I save them to my hard drive and tell who wrote a paper when I print it out; every time you follow them, it will make the world a slightly happier place. Also, don’t use Times New Roman, which is a terrible font.

»  Final exam or research paper

For the main assignment, you have two options: a take-home final exam or a substantial research paper. I will say more about the final exam’s contents as it approaches. You may also write a substantial research paper of around 10,000 words — along the lines of a Law Review or IDEA note — in lieu of the exam. If you’re interested in this, talk to me early in the semester; we will need to discuss your topic and I will need to approve it by around mid-November.

»  Class discussion, diversity, and inclusion

This is a course centered on discussion. I will not be lecturing, so it is critical that you come to class prepared. This means you need to have read and considered the assigned materials and be ready to discuss them with me and with the rest of the class. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion. In this course, we are all here to learn from each other, and if you don’t contribute to that exchange, you are shortchanging your fellow students.

This learning process only works if the classroom is a welcoming and inclusive place that supports a diversity of thoughts, perspectives, and experiences, and honors your identities, including race, gender, class, sexuality, religion, ability, and so forth. I want you to feel comfortable in class, free to express your experiences and opinions — in a professional and respectful manner — and learn from the many diverse experiences and opinions of your classmates. If there’s anything that is making you uncomfortable, inside or outside of class, please come and talk with me about it, and I will do anything I can to help so long as it’s consistent with the goal of learning. And if you use a name or set of pronouns that differ from those in UNH’s records, please let me know.

In an ideal world, the law would similarly reflect the full, diverse array of thoughts, perspectives, and experiences. Law, though, is a field that is historically built on a small subset of privileged voices. We will make an effort to read materials from a wide array of authors and perspectives, but we can only do so much given the way that legal doctrines and ideas have developed. I am counting on each of you to help surface these biases and limitations as we make our way through the course.

»  Competencies

In 2013, the faculty approved a list of competencies that are important to the practice of law. For a list of those competencies, indicating which will be covered in this class, click here.

»  Schedule and reading assignments

Last updated: November 28, 2018.

I will fill in the following list of reading assignments over the course of the semester. “S&S” refers to the Solove & Schwartz casebook.

  1. The functions of privacy and origins of privacy law.
  2. News gathering, disclosure, and the public interest in information.
  3. Regulating privacy and speech: The First Amendment, emotional distress, and anonymity.
  4. Consumer privacy and data brokers.
  5. Consumer privacy and the FTC as privacy guardian.
  6. Financial privacy, identity theft, and data security. (I know I said in class we would turn to European privacy law; we’ll do that next week instead.)
  7. European privacy law: Privacy as a human right.
    • S&S 663–665, 1094–1140.
  8. European privacy law: Data-protection law, part I.
  9. European privacy law: Data-protection law, part II; international data transfers.
    • Review S&S 663–665, 1096–1100, 1168–1173.
    • Review van der Sloot & Borgesius, pages 1–26.
    • van der Sloot & Borgesius, pages 34–42.
    • S&S 1173–1197.
    • Optional but useful if you’re interested in AI and algorithmic decision making: Margot Kaminski, The Right to Explanation, Explained.
  10. Health privacy: Intimate privacy and individual autonomy.
  11. Health privacy: Patient confidentiality and HIPAA.
  12. Health privacy: More! (No new assignment.)
  13. Privacy and national security.
  14. Physical technologies: Robots, drones, and the internet of things. For our final class, we’ll discuss some emerging topics at the intersection of the physical world and privacy law. These are all technological developments and social developments that promise or threaten to change the relationship between actors in the information ecosystem. I’ve linked to some readings relating to some of these developments, which you should look over; but please also spend some time thinking about how you think privacy will evolve in the coming years and how the law could or should respond to that evolution. And if you have other developments you think will play a similar or bigger role, read up on those and come ready to convince us.