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JackFurnessFirstPaper 4 - 03 Apr 2021 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | A New Theory of Commercial Speech | | | In Sorrell v. IMS Health (2011), the Supreme Court held that a Vermont state that restricted the sale, disclosure, and use of records revealing the prescribing practices of doctors was an impermissible violation of commercial speech under the Central Hudson test. This case has been read to mean that harvesting and selling users’ data is a protected form of commercial speech, and therefore, any regulation that limits such speech must survive intermediate scrutiny. | |
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< | I will argue that such a regulation could and should pass muster under current First Amendment jurisprudence for two reasons. First, the importance of the government interest asserted is high because most online users have a reasonable expectation of privacy from passive collection of their data while online. Second, most internet users have no knowledge of or ability to opt-out of passive data collection, which is in turn an infringement on their own right to collect and sell their personal data, or at least elect not to have it taken from them without just compensation. This paper will explore both of these arguments under the umbrella of current First Amendment jurisprudence and argue that, against the backdrop of the explosive growth of the market for user data and the inapposite countervailing interests expressed in prior commercial speech cases, an act of Congress that restricts internet service providers from passively collecting and selling users’ data without express consent could pass muster under the present constitutional framework. | >
> | I will argue that such a regulation could and should pass muster under current First Amendment jurisprudence for two reasons. First, the importance of the government interest asserted is high because most online users have a reasonable expectation of privacy from passive collection of their data while online. Second, most internet users have no knowledge of or ability to opt-out of passive data collection, which is in turn an infringement on their own right to collect and sell their personal data, or at least elect not to have it taken from them without just compensation. This paper will explore both of these arguments under the umbrella of current First Amendment jurisprudence and argue that, against the backdrop of the explosive growth of the market for user data and they inapposite countervailing interests expressed in prior commercial speech cases, an act of Congress that restricts internet service providers from passively collecting and selling users’ data without express consent could pass muster under the present constitutional framework. | | | | |
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Jack, you really need to complete this first draft so that we can move on to a second.
| | | Section I [Background / Overview of the Issue]
Subsection A [Commercial Speech / Central Hudson Valley] |
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