The Norm against Economic Espionage for the Benefit of Private Firms: Some Theoretical Reflections
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For decades, the American intelligence community has adhered to a norm against spying for the sake of enriching private firms. More recently, the norm has figured in a prominent presidential directive as well as in various international agreements. But notwithstanding its durability and its newfound renown, the norm has largely eluded scholarly consideration. In this Essay, I aim to address that gap by showing how theories of agency capture and institutional culture can help make sense of the norm’s past and inform judgments about its future.
Special thanks to Mario Barnes, Courtney Douglas, Paul Gowder, Deborah Turkheimer, to the audience at Northwestern Law’s Julian Rosenthal Lecture, and to Miranda Coombe, Sam Hallam, Caroline Kassir, and Danielle O’Connell for superb editing. Adeleine Lee and Alex Wilfert provided excellent research assistance. The authors contributed equally to this essay.
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.
Special thanks to Mario Barnes, Courtney Douglas, Paul Gowder, Deborah Turkheimer, to the audience at Northwestern Law’s Julian Rosenthal Lecture, and to Miranda Coombe, Sam Hallam, Caroline Kassir, and Danielle O’Connell for superb editing. Adeleine Lee and Alex Wilfert provided excellent research assistance. The authors contributed equally to this essay.
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.
I would like to thank Jack Brake, Anne Marie Hawley, and Jonah Klausner for their thoughtful edits and Jake Holland for his indispensable advice all throughout the drafting process.
Illinois’s Biometric Information Privacy Act (BIPA) is the country’s most powerful law governing biometric data—data generated from an individual’s biological characteristics, like fingerprints and voiceprints. Over the past decade, BIPA garnered a reputation as an exceptionally plaintiff-friendly statute. But from 2023–2024, the Illinois legislature, Illinois Supreme Court, and Ninth Circuit Court of Appeals all sided with BIPA defendants for the first time. Most significantly, in Zellmer v. Meta Platforms, Inc., the Ninth Circuit dismissed the plaintiff’s BIPA claim because the face scan collected by the defendant could not be used to identify him.
It is unclear whether these developments represent a trend or an exception to BIPA’s plaintiff-friendliness. Which path is charted will largely turn on how courts interpret Zellmer: While Zellmer established that a biometric identifier must be able to identify an individual, lower courts have construed its holding narrowly to require that the entity collecting biometric data must itself be capable of identifying, rather than it being sufficient for any entity to do so. Reading BIPA this narrowly would significantly weaken the statute’s protections.
After detailing how employer and consumer cases catalyzed this recent defendant-friendly shift, this Comment proposes a two-step framework to determine whether a biometric identifier is able to identify, falling under BIPA’s reach. Given BIPA’s broad influence, where courts ultimately land on this question will be crucial to the protection of biometric data nationwide."