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

News & Events

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here. Share this: on Twitter on Facebook on Google+

Newsletter

cforms contact form by delicious:days