Minnesota Law Review

Branding Privacy

This Article focuses on the problem of the privacy lurch, defined as an abrupt change made to the way a company handles data about individuals. Two prominent examples include Google’s decision in early 2012 to tear down the walls that once separated data collected from its different services and Facebook’s decisions in 2009 and 2010 to expose more user profile information to the public web by default than it had in the past. Privacy lurches disrupt long-settled user expectations and undermine claims that companies protect privacy by providing notice and choice. They expose users to much more risk to their individual privacy than the users might have anticipated or desired, and they do so long after users stop paying attention to privacy policies. Given the special and significant problems associated with privacy lurches, this Article calls on regulators to seek creative solutions to address them.

For new solutions, we should look to trademarks and brands because the information qualities of trademarks can meet the notice deficiencies of a privacy lurch. The novel union of trademark and privacy law yields a new prescription called “branded privacy,” which would require every company that handles customer information to associate its trademark with a specified set of core privacy commitments. If a company someday decides to depart from its initial promises—for example, by embracing a new behavioral advertising business model—it may do so, but only under a new name. Under this rule, Facebook would have been allowed to make the switch it made from private to public, but only after it had changed the name of its service to something new, say “Facebook Public” or “Facebook Enhanced.” A close elaboration and evaluation of this solution reveals how well it strikes an appropriate balance between robust privacy protection and a dynamic, free market.


:: View PDF

De Novo

  • Case Comment: Bhogaita v. Altamonte

    EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit.[1] Although the case presented many serious [...]

  • Revisiting Water Bankruptcy

    REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself[1]—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]

  • Defying Auer Deference

    DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.[1]F The Court overturned the D.C. [...]