David S. Levine (Elon University School of Law) has posted Confidentiality Creep and Opportunistic Privacy (Tulane Journal of Technology & Intellectual Property, Forthcoming) on SSRN. Here is the abstract:
We have entered an era where increasing amounts of secret and proprietary information, known by few, impede the public’s interest in an open democratic society. Within the past several years, there has been a growing recognition that confidentiality, privacy and secrecy can have significant impact on the public’s ability to know what private industry, and increasingly government, is doing. From the chemical formulas in hydraulic fracturing to algorithms in autonomous cars, the demands of confidentiality, privacy and secrecy has prevented the public from receiving critical information, held by both governments and the private sector, needed to understand how private behavior impacts the public.
This Article identifies and analyzes two recent information control developments and their basic parameters and challenges: untethered, unsupported and unanalyzed claims of information “confidentiality” (termed “confidentiality creep”) and amorphous privacy claims (termed “opportunistic privacy”) in the development and civilian deployment of driverless cars, social media information diffusion, and other code-based technologies. By focusing on Facebook's public response to Russian influence campaigns in the 2016 US Presidential election and Google's and Uber's willingness to share information publicly about autonomous car technology, confidentiality creep and opportunistic privacy are brought into sharp relief.