Ryan Calo

Ann Bartow once criticized Daniel Solove for not providing enough “dead bodies” in his discussion of privacy. I tend to disagree that such proof is necessary. But privacy has seen a dead body recently—that of Rutgers University student Tyler Clementi.

The narrative around Clementi’s tragic suicide continues to shift. The press originally reported that Clementi killed himself after his roommate invited the entire campus to view footage of Clementi having sex with another man. The Associated Press is now reporting that, according to the roommate’s defense attorney, no one but he and his friend ever saw the video.

The question of whether the defendants recorded or broadcast the web cam is highly relevant to whether there has been a privacy violation. Yet it is hardly relevant at all to the question of whether there has been a privacy harm. Read more » about Clementi And The Nature Of Privacy Harm

Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.

Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”

In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement."

Readers are likely familiar with the cyberlaw mantra that “code is law.” What’s striking is that since Lawrence Lessig published Code in 1999, relatively little has been written about the dangers of regulation by architecture, particularly outside of the context of intellectual property. Many legal scholars—Neil Katyal, Elizabeth Joh, Edward Cheng—have instead argued for more regulation by architecture on the basis that it is less discriminatory or more effective. Read more » about (Im)Perfect Enforcement