Commons and Growth: The Essential Role of Open Commons in Market Economies

Search costs matter and are reflected in many areas of law. For example, most disclosure requirements economize on search costs. A homeowner who must disclose the presence of termites saves a potential buyer, and perhaps many such buyers, from spending money to search, or inspect, the property. Similarly, requirements to reveal expected miles per gallon, or risks posed by a drug, economize on search costs. But these examples point to simple strategies and costs that can be minimized or entirely avoided with some legal intervention. Law can do better and take account of more subtle things once sophisticated search strategies are understood. This Essay introduces such search strategies and their implications for law.

Antidemocratic forces rely on intimidation tactics to silence criticism and opposition. Today’s intimidation playbook follows a two-step pattern. We surface these tactics so their costs to public discourse and civic engagement can be fully understood. We show how the misappropriation of the concept of online abuse has parallels in other efforts at conceptual diversion that dampen democratic guarantees. Democracy’s survival requires creative solutions. Politicians and government workers must be able to operate free from intimidation. Journalists and researchers must be able to freely investigate governmental overreach and foreign malign influence campaigns that threaten the democratic process. Surfacing the two-step strategy is a critical start to combating it.

Recently, many states have reacted to the growing data economy by passing data privacy statutes. These follow the “interaction model”: they allow consumers to exercise privacy rights against firms by directly interacting with them. But data brokers, firms that buy and sell data for consumers whom they do not directly interact with, are key players in the data economy. How is a consumer meant to exercise their rights against a broker with an “interaction gap” between them?

A handful of states have tried to soften the interaction gap by enacting data-broker-specific legislation under the “transparency model.” These laws, among other things, require brokers to publicly disclose themselves in state registries. The theory is that consumers would exercise their rights against brokers if they knew of the brokers’ existence. California recently went further with the Delete Act, providing consumers data-broker-specific privacy rights.

Assembling brokers’ reported privacy request metrics, this Comment performs an empirical analysis of the transparency model’s efficacy. These findings demonstrate that the transparency model does not effectively facilitate consumers in following through on their expected privacy preferences or meaningfully impacting brokers. Therefore, regulators should follow in the footsteps of the Delete Act and move beyond the transparency model.