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Table of Contents Introduction 1641 I. Comparing Private, Public, and Hybrid Enforcement of Privacy Law 1646 A. Public Enforcement Regimes 1648 B. Private Enforcement Regimes 1651 C. Hybrid Enforcement Regimes [...], Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government's power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of action can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.

The article assesses the use of the analogy of the law in examining the role of big data in the information economy. Topics mentioned include the a brief history of the data-as-oil analogy, the failure of the analogy based on logic, the implications of different properties of data and oil on legal framework, and various substitutes for the data-as-oil analogy.

When consumers sue companies for privacy-intrusive practices, they are often unsuccessful. Many cases fail in federal court at the motion to dismiss phase because the plaintiff has not shown the privacy infringement has caused her concrete harm. This is a symptom of a broader issue: the failure of courts and commentators to describe the relationship between privacy rights and privacy remedies. This Article contends that restitution is the normal measure of privacy remedies. Restitution measures relief by economic gain to the defendant. If a plaintiff can show the likely ability to recover in restitution, that should be sufficient to pass muster at the motion to dismiss phase even if the court is unconvinced that the plaintiff could show a case for compensatory damages flowing from harm. This argument intervenes in the scholarly literature in two ways. First, it supports the realist perspective that remedies are constitutive of rights. The election of restitution as a remedy suggests that privacy should be conceptualized in tort as quasi-property, and that contract and/or restitution claims should be a standard part of privacy infringement pleadings. Second, it challenges the view that defining specific and stronger privacy rights at law would be sufficient to increase privacy protection. If any privacy rights are to exist at all, they must be linked to proportional, accessible remedies. [ABSTRACT FROM AUTHOR]

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This Article evaluates three possible institutional avenues for privacy petitioning: (1) state courts, (2) state agencies, and (3) mandatory disclosure of consumer petitions by companies to federal agencies. [ABSTRACT FROM AUTHOR]