This Year’s Must-Read Privacy Papers to be Honored at Capitol Hill Event

The Future of Privacy Forum’s 13th Annual Privacy Papers for Policymakers Award Recognizes Influential Privacy Research

Today, the Future of Privacy Forum (FPF) — a global non-profit focused on data protection headquartered in Washington, D.C. — announced the winners of its 13th annual Privacy Papers for Policymakers (PPPM) Awards.

The PPPM Awards recognize leading privacy scholarship that is relevant to policymakers in the U.S. Congress, at federal agencies and for international data protection authorities. Six winning papers, one honorable mention, a student submission and a student honorable mention were selected by a diverse group of leading academics, advocates and industry privacy professionals from FPF’s Advisory Board.

Award winners will have the unique opportunity to showcase their papers at the Privacy Papers for Policymakers ceremony on February 16, 2023 on Capitol Hill.

“Academic scholarship can serve as a valuable resource for policymakers,” said Jules Polonetsky, FPF’s CEO. “Now more than ever, topics such as discriminatory exclusion, punitive surveillance, algorithmic fairness, cross-border data flows, reproductive health and the enforcement of data protection rules are at the forefront of the privacy debate. These papers are ‘must-reads’ for legislators and data protection regulators grappling with data protection issues and enforcement.”

FPF’s 2023 Privacy Papers for Policymakers Award winners are:

• Dismantling the “Black Opticon”: Privacy, Race, Equity, and Online Data-Protection Reform by Anita L. Allen, University of Pennsylvania Carey Law School
  • This paper critically elaborates the “Black Opticon” — the discriminatory oversurveillance, discriminatory exclusion and discriminatory predation African Americans face online. The paper considers whether the Virginia Consumer Data Protection Act (2021), the Federal Data Protection Act (2021) and new resources for the Federal Trade Commission possibly meet imperatives of a race-conscious African American Online Equity Agenda, specifically designed to help dismantle the Black Opticon. The paper recommends further regulation of the digital economy in the interests of nondiscrimination, antiracism, and antisubordination.

• Privacy and/or Trade by Anupam Chander, Georgetown University Law Center; and Paul M. Schwartz, University of California, Berkeley, School of Law
  • This paper argues that international privacy and trade law developed together, but are now engaged in significant conflict; it predicts that current efforts to reconcile the two are likely to fail. The paper uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions. It also describes how more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data, as well as the risk that nonuniform application of cross-border data transfer rules will have ominous results for the data flows that power trade today. The paper proposes a Global Agreement on Privacy that would be enforced within the trade order, but with external data-privacy experts developing the treaty’s substantive norms.

• Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the ‘Three Corners’ of Privacy Legislation Needed by Eunice Park, Western State College of Law
  • Following the fall of Roe v. Wade, reproductive health care continues to be a political hot button. This paper argues that placing over-due limits on state surveillance can protect the privacy of personal health data. Currently, law enforcement can obtain reproductive health care data for “free” by subpoenas, orders, warrants and geofence warrants; and data “for sale” by data brokers, including sensitive geolocation information and data from fertility apps. The paper calls for federal legislation that provides privacy safeguards for reproductive health care data, including a specific carve-out for reproductive data, a prohibition against data brokers selling reproductive data and protections against the use of reproductive data in criminal cases if the data is obtained without a warrant.

• Understanding the Challenges Data Protection Regulators Face: A Global Struggle Towards Implementation, Independence, & Enforcement by Pawel Popiel, University of Pennsylvania Annenberg School for Communication; and Laura Schwartz-Henderson, Internews
  • With growing internet access in the Global South and rapidly expanding and integrating global data economies, Data Protection Authorities (DPAs) have become central actors in governing regional data flows. This paper examines the challenges facing DPAs in Africa and Latin America. Drawing on academic and policy literature and interviews with data protection regulators and civil society representatives from Africa and Latin America, this paper assesses challenges related to: 1) Establishing a DPA; 2) DPAs’ funding and capacity; 3) Independence in structure and decision-making; 4) Compliance and raising awareness; 5) Enforcement; 6) Tackling emerging policy issues; and 7) Collaboration within and across regions with other DPAs and with civil society. The report identifies two prominent factors as key obstacles to effective data protection oversight: resource constraints and threats to independence. The report also identifies essential best practices and recommendations aimed at tackling these challenges, including collaboration among regional DPAs and between DPAs and civil society.

• Algorithms and Economic Justice: A Taxonomy of Harms and a Path Forward for the FTC by Rebecca Kelly Slaughter, Federal Trade Commission; with Janice Kopec, Federal Trade Commission and Mohamad Batal, Federal Trade Commission
  • This paper offers three primary contributions to the existing literature. First, it provides a baseline taxonomy of algorithmic harms that portend injustice, describing both the harms themselves and the technical mechanisms that drive those harms. Second, it describes FTC Commissioner Slaughter’s view of how the Commission’s existing tools — including section 5 of the FTC Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and market studies under section 6(b) of the FTC Act — can and should be aggressively applied to thwart injustice. And finally, it explores how new legislation or an FTC rulemaking under section 18 of the FTC Act could help structurally address the harms generated by algorithmic decision-making.

• Punitive Surveillance by Kate Weisburd, George Washington University Law School
  • Budget constraints, bipartisan desire to curb mass incarceration and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance – such as GPS-equipped ankle monitors, smart phone tracking and suspicionless searches of electronic devices – is often touted as a humane substitute for incarceration. This paper analyzes “punitive surveillance” practices, which allow government officials, law enforcement and for-profit companies to track, record, share and analyze the location, biometric data and other meta-data of thousands of people on probation and parole. The paper describes how these practices deprive people of fundamental rights, including privacy, speech and liberty; the paper also examines several policy approaches that could most effectively limit – if not outright eliminate – punitive surveillance.

In addition to the winning papers, FPF selected for Honorable Mention: “The art of data privacy“, an excerpt from the book, Protecting Your Privacy in a Data-Driven World, by Claire McKay Bowen, Center on Labor, Human Services, and Population, The Urban Institute.

FPF also selected for the Student Paper Award, Caught in quicksand? Compliance and Legitimacy Challenges In Using Regulatory Sandboxes To Manage Emerging Technologies by Walter G. Johnson, a Ph.D. Scholar with the Australian National University School of Regulation and Global Governance (RegNet). A Student Paper Award Honorable Mention went to My Cookie is a phoenix: detection, measurement, and lawfulness of cookie respawning with browser fingerprinting by Nataliia Bielova, French National Institute for Research in Digital Science and Technology; Imane Fouad, Inria Centre at the University of Lille; Arnaud Legout, Inria Center of Côte d’Azur University; and Cristiana Santos Utrecht University School of Law.

In reviewing the submissions, these winning papers were awarded based on the strength of their research and proposed policy solutions for policymakers and regulators in the U.S. and abroad.