Intellectual Property's Lessons for Information Privacy

• Publication year: 2021

92 Nebraska L. Rev. 746. Intellectual Property's Lessons for Information Privacy

Intellectual Property's Lessons for Information Privacy

Mark Bartholomew(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 747

II. Defending the IP Law/Privacy Law Analogy ........... 753
A. Intellectual Property's Relevance to Information Privacy ........................................... 754
B. Answering the Intellectual Property Skeptics ...... 755
C. The Insufficiency of Contract ...................... 761

III. Free Speech and Subject Matter ....................... 766
A. Copyright's Focus on Speech Subject ............... 766
B. Categorization and Information Privacy ............ 772

IV. Intent ................................................ 775
A. Improper Motive and Free Speech ................. 776
B. Information Privacy and Proscribed Motivations . . . 781

V. Assessing the Defendant's Speech Contribution ........ 786
A. IP's Formalized Mechanisms for Assessing New Expression ........................................ 786
1. Transformativeness ............................ 787
2. Newsworthiness ............................... 789
B. Evaluating the Speech Contributions of Data Users ............................................. 791

VI. Conclusion ............................................ 797

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I. INTRODUCTION

Although most may assume the contrary,(fn1) absent special circumstances, individuals have no right in their personal information.(fn2) Today's companies routinely collect data on online consumer behavior and use that data for targeted advertising. Web sites send cookies to Web browsers that record not only our trips to the cookie-sending Web site, but also subsequent visits to all other sites in our online travels.(fn3) Meanwhile, Internet service providers install software directly on customer computers or, in the case of "deep-packet inspection," hardware on our routing devices that tracks the online traffic coming in and out of our homes.(fn4) These technologies produce rich consumer profiles revealing when, where, and who we travel with in the online world. The technologists then sell these profiles to third parties for the sole purpose of beaming back personally tailored advertisements to our computer screens.(fn5) Although steps are taken to keep data collected online anonymous, recent exposés reveal how easy it is to extrapolate a particular identity from a few scraps of online data.(fn6) Information

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profilers routinely fail to secure the online data they collect, potentially subjecting consumers to online threats and identity theft as personal information falls into the wrong hands.(fn7) Online tracking poses real dangers, but the current legal and regulatory framework is largely impotent to deal with them.

Revelation of these practices has galvanized public and political opinion.(fn8) A substantial majority of American consumers support greater restrictions on and penalties for use of personal information collected online.(fn9) Recent legislative and regulatory initiatives call for vigorous consumer protections against online data collection and marketing. The Federal Trade Commission recently requested "targeted legislation" to provide greater control over the practices of information brokers.(fn10) Multiple bills are pending in Congress, including legislation setting mandatory timetables for the safe disposal of collected information,(fn11) "Do Not Track Acts," which would allow consumers to opt

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out of online data collection,(fn12) and limitations on the solicitation and gathering of online data from children.(fn13) For citizens and legislators, the question is not whether steps should be taken to enhance consumer privacy, but how consumer privacy should be protected.

Despite the groundswell in favor of greater data privacy, there is a real possibility that none of these legislative initiatives will succeed. In reviewing new information privacy laws, courts will be faced with the separate question of how to balance such protections with the right to free expression. This is because a company's decision to collect our personal data, share it with others, or repackage it into advertisements can be labeled speech. Various authorities, including the United States Supreme Court, maintain that setting privacy limitations on data sharing represents a government effort to censor expression.(fn14) Although the party facing censorship is typically a corporation using personal information for advertising purposes, commercial speech enjoys constitutional protection(fn15) regardless of the corporate

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status of the speaker.(fn16) In short, laws protecting data privacy inevitably need to be reconciled with the First Amendment.(fn17) Under current law, judges on the alert for threats to free expression and bound by higher authority may believe they have little choice but to strangle these fledgling efforts at online privacy in their cradle.

A recent case before the Supreme Court, Sorrell v. IMS Health Inc., illustrates the problem.(fn18) At issue was a Vermont law restricting pharmaceutical marketers' access to and use of prescription data for advertising purposes.(fn19) Pharmacies sold prescribing data to the marketers, which resulted in targeted sales pitches to doctors.(fn20) Vermont banned the practice (with limited exceptions) unless a prescribing doctor's consent was obtained first.(fn21) Vermont's legislature passed the law, in part, to protect "the privacy of prescribers and prescribing information."(fn22) Applying "heightened judicial scrutiny" to the law,(fn23) the Court struck it down as an unconstitutional burden on protected speech under the First Amendment.(fn24)

Sorrell suggests broad recognition of the use of online information as "speech."(fn25) The Court condemned the First Circuit, which had upheld a similar state law, for characterizing the prescriber-identifying information at issue "as a mere 'commodity' with no greater entitlement to First Amendment protection than 'beef jerky.'"(fn26) Instead, the

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Court explained, "the creation and dissemination of information are speech within the meaning of the First Amendment."(fn27) Although Justices Breyer, Ginsburg, and Kagan dissented, a six-judge majority, including Justice Sotomayor, agreed that the government's effort to restrict use of personal prescribing information was an unconstitutional abridgement of speech. This suggests that a stable coalition on the Court deems the use of collected consumer information as speech protected under the First Amendment. Hence, lower courts evaluating new information privacy laws (and the legislators drafting them) will need to construe such laws as speech regulations and square them with constitutional protections for free expression.(fn28)

Sorrell is just one case, and it may be able to be distinguished by courts reviewing other information privacy laws.(fn29) Because the Vermont law forbid the use of prescription data for marketing, but not for other purposes such as "educational communications," the majority deemed the speech restriction content-based and, hence, deserving of particularly exacting First Amendment review.(fn30) Another statute might be more carefully drafted. Even so, as it stands now, there is no recognizable, effective jurisprudential mechanism for reconciling information privacy with free expression.(fn31) The Sorrell decision offers no guidance on how to determine when a state's interest in consumer privacy is sufficiently compelling to rebuff a First Amendment challenge.(fn32) Before Sorrell, various privacy laws from the analog era were subjected to First Amendment review. Rather than representing a balance of two competing interests, however, the Supreme Court treated the First Amendment as an unyielding trump card for defend-

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ants.(fn33) Repeatedly, the Court invalidated actions for common law privacy violations on free-speech grounds.(fn34) Statutory privacy protections exist as well but, like their common law cousins, no clear paradigm for assessing their constitutionality has come to the fore.(fn35) In sum, existing privacy law offers little guidance to a court trying to balance free speech with information privacy.

As a result, judges seeking guidance need to turn to precedents outside of privacy law. As with legal restrictions on the use of online data, intellectual property law necessarily bumps up against constitutional safeguards for free expression. Intellectual property laws, just like proposed data privacy laws, prevent others from engaging in expressive activity and thereby implicate the First Amendment. Laws permitting authors to stop dissemination of infringing works, trademark holders to block unauthorized use of their brands, and celebrities to shut down traffic in their personas all proscribe speech.(fn36) Unlike proposed data privacy laws, intellectual property law has been on the books for decades. The result has been a raft of judicial decisions considering the proper balance of intellectual property rights and free speech.

Studying the different ways in which intellectual property law addresses expressive concerns offers a variety of models for resolving the

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impending conflict between data privacy and the First Amendment. Yet intellectual property's models for calibrating free-speech interests have been ignored by courts...