ACADEMIC SCHOLARSHIP

Books

Privacy as Trust: Information Law for an Information Age (Cambridge University Press) (forthcoming 2018)

This project develops from my doctoral dissertation, conceptualizing information privacy as emanating from relationships of trust. Trust is a resource of social capital among individuals concerning their expectations that others will continue to behave according to accepted norms. It defines when we feel comfortable sharing with others. As such, the law of information privacy should be focused on protecting relationships of trust. The book distinguishes privacy as trust from traditional notions of trust and applies the doctrine to several vexing questions of law and policy: drawing the line between public and private in traditional privacy torts, the applicability of the tort of breach of confidentiality, publicness in intellectual property, and cyberharassment.

Selected Law Reviews 

Designing Without Privacy
55 HOUSTON LAW REVIEW __ (forthcoming 2018)

This Article presents findings from an ethnographic study of how, if at all, technologists doing the work of technology product design think about privacy, integrate privacy into their work, and consider user needs in the design process. . Based on these findings, this Article presents a narrative running in parallel to the one described by Kenneth Bamberger and Deirdre Mulligan in their book, Privacy on the Ground. This alternative account, where privacy is narrow, limited, and barely factoring into design, helps explain why so many products seem to ignore our privacy expectations. The Article then proposes a framework for understanding how factors both exogenous (theory and law) and endogenous (corporate structure and individual cognitive frames and experience) to the corporation prevent the CPOs’ robust privacy norms from diffusing throughout technology companies and the industry as a whole. This framework also helps elucidate how reforms at every level—theory, law, organization, and individual experience—can incentivize companies to take privacy seriously, enhance organizational learning, and eliminate the cognitive biases that lead to discrimination in design.

Are Anti-Bullying Laws Effective?
103 CORNELL LAW REVIEW ONLINE __ (forthcoming 2017)

Using data from the 2015 Youth Risk Behavior Survey, this Essay compares rates of bullying, cyberbullying, or suicidal thoughts among lesbian, gay, and bisexual (LGB) teenagers among states. THe Essay shows that having an anti-bullying law, even a comprehensive one, is not correlated with lower rates. Rather, only states that evidence a broader commitment to LGBTQ equality generally have lower rates of bullying, cyberbullying, and suicidal thoughts among LGB teens.

Notices and Choices: A Statistical Analysis of Privacy Policy Design,
93 NOTRE DAME LAW REVIEW ONLINE __ (forthcoming 2017)

Based on a survey of Internet users, this Essay shows that when faced with a choice between a website with a privacy policy with, on the one hand, an aesthetically pleasing design and invasive data use practices, and, on the other hand, a traditionally-designed policy with strong data protections, majorities of users perceive that the website with a well-designed privacy policy will better protect their privacy. In addition, using statistical modeling, this Essay shows that greater knowledge of the legal implications of privacy policies is the only significant predictor of a user’s capacity to discern strong privacy protections despite policy design.

Privacy, Notice, and Design,
20 STANFORD TECH. L. REV. __ (forthcoming 2017)

Privacy policy design — the artistic and aesthetic choices that present and display the disclosures to the public on a website — can manipulate users into making risky privacy decisions. Even design strategies that can be considered user friendly may be used to manipulate users into thinking the website protects privacy. This paper steps between the traditional notice-and-choice regime and privacy-by-design advocates and presents empirical evidence that users trust websites with policies designed to be user friendly even when those policies include invasive practices. This suggests that it is not only design that is important in protecting privacy; what matters is how design affects user choices.

A Breach of Trust: Fighting “Revenge Porn”,
102 IOWA L. REV. 709 (2017)

This essay argues that a robust tort of breach of confidentiality offers doctrinal and practical benefits as a weapon in the practitioner’s arsenal to fight nonconcensual pornography.

Trust: A Model for Disclosure in Patent Law,
92 INDIANA L. J. 557 (2017)

In this article, I show that, as applied, the public use bar, which denies patents to inventions that have been in public use or display more than one year prior to patenting, privileges corporate inventors and burdens solo entrepreneurs. I propose a new method for adjudicating public use cases, using social principles of trust and the diffusion of information within and across networks, that makes the doctrine and application fairer and retains fidelity to the goals of the public use bar and patent law, generally.

Triggering Tinker: Student Speech in the Age of Cyberharassment ,
71 U. MIAMI L. REV. 427 (2017)

Although regulation of student speech is not the only tool in public schools’ arsenal against cyberharassment, this article argues that current student speech jurisprudence leaves schools room to combat off-campus online harassment that affects schools’ learning environments.

Privacy, Sharing, and Trust: The Facebook Study,
67 CASE W. RES. L. REV. 193 (2016)

This paper presents empirical evidence suggesting that trust is a significant factor in individuals’ willingness to share personal information online. Based on that evidence, I make two arguments, one descriptive and one prescriptive. First, I argue that Facebook is built on trust: the trust that exists between friends and the trust that exists between users and the platform. In particular, I describe how Facebook designs its platform—through, among other tactics, its references to related friend activity above and below advertisements—to leverage the trust we have in our friends to manipulate us into sharing information with third party advertisers. Second, I argue that this design tactic should be regulated. Because Facebook uses this same technique on social posts as well as advertisements, users may be confused about the privacy effects of clicking on the item. Federal and state consumer and privacy protection regulators should step in.

Manipulating Trust on Facebook,
29 LOY. CONSUMER L. REV. 175 (2016)

Facebook’s business model is built on gathering massive amounts of information from its users. To maximize the data it collects, Facebook relies on the trust users have in their friends to encourage them to share even more. This essay builds on James Grimmelmann’s Saving Facebook and argues Facebook’s use of trust sometimes steps over the line into manipulation.

Amplifying Abuse: The Fusion of Cyberharassment and Discrimination,
B. U. L. REV. ANNEX (Oct. 2015),
http://www.bu.edu/bulawreview/waldman-amplifying-abuse/.

This short essay, contributed as part of a symposium on Danielle Keats Citron’s Hate Crimes in Cyberspace, argues that cyberharassment is particularly and uniquely harmful for LGBTQ persons because of the institutional discrimination they face.

Privacy as Trust: Sharing Personal Information in a Networked World,
69 U. MIAMI L. REV. 559 (2015).
Winner of the Otto L. Walter Distinguished Writing Award, 2016

This article, which is the theoretical center of my dissertation, challenges the conventional wisdom conceptualizing privacy around principles of autonomy, individual rights, and seclusion. Privacy law should focus on protecting relationships of trust: the implied principle that allows all forms of social interaction to proceed, from the closeness of intimates to frequent encounters with perfect strangers. The implications for protection of privacy are manifold, including protecting limited privacy and unmasking anonymous online tortfeasors.

All Those Like You: Identity Aggression and Student Speech,
77 MISSOURI L. REV. 563 (2013)

This article shows that federal courts fail to recognize the group harm of identity harassment and ignore the benefits of identity affirming speech. I challenge the conventional interpretation of the Court’s student speech cases and argue that disciplining identity harassers would not violate the 1st Amendment.

Hostile Educational Environments,
71 MARYLAND L. REV. 705 (2012)

This paper compares bullying to workplace harassment and finds that repeated face-to-face and online aggression toward students more closely resembles the patterns of workplace harassment than classic student speech protected by the First Amendment. Therefore, I argue that online harassment of students should be considered an extension of the school environment for the purposes of determining a school’s disciplinary authority over cyberbullies.

Tormented: Anti-Gay Bullying in Schools,
84 TEMPLE L. REV. 385 (2012)

I argue the criminalizing bullying is not an effective solution to harassment in schools. Along with analyses and data from the Gay, Lesbian, Straight Education Network (GLSEN), I conducted my own field research to determine the effectiveness of harsh in-school and state disciplinary responses to bullying in schools.

Legal Essays

Images of Harassment: Copyright and Revenge Porn, 23 FED. B. C. Q. 15 (Sept./Oct./Nov. 2015).

The Freedom to Marry: Politics and Law in 2014 and Beyond, 40 HUMAN RIGHTS 22 (2014).

Military Justice is Alive and Well: A Response to Dr. William J. Gregor, XLI PARAMETERS 124 (2011).

Book Chapters 

Privacy As Trust: Sharing Personal Information in a Networked World, in CULTURES OF PRIVACY (Karsten Fitz & Barbel Harju, eds. 2015).

Presumptive Criminals: HIV-Related Aggravated Assaults, in HANDBOOK OF LGBT COMMUNITIES, CRIME, AND JUSTICE (Dana Peterson and Vanessa R. Panfil, eds. 2014).

Popular Press Essays and Op-Eds

Harasser-in-Chief: Donald Trump and Steve Bannon Need Angry Young Men. They’re Using Gamergate Culture to Get Them, QUARTZ (Feb. 3, 2017), https://qz.com/901761/donald-trump-and-steve-bannon-are-using-gamergate-culture-to-attract-angry-white-men/.

The Dangers of Anonymity on the Internet, FORWARD (November 2016), http://forward.com/shma-now/tochecha-rebuke/353506/the-dangers-of-anonymity-on-the-internet/.

Cybermobs Multiply Online Threats and Their Danger, NEW YORK TIMES (Aug. 3, 2016  10:06 PM), http://www.nytimes.com/roomfordebate/2016/08/03/how-to-crack-down-on-social-media-threats/cybermobs-multiply-online-threats-and-their-danger.

For Tyler: How One Man is Taking On Cyberbullies, THE ADVOCATE (Oct. 8, 2015 4:00 AM), http://www.advocate.com/commentary/2015/10/08/tyler-how-one-man-taking-cyberbullies.

Ending the Cyberbullying Epidemic Five Years After Tyler Clementi’s Suicide (with Jane Clementi), NEW YORK DAILY NEWS (Oct. 1, 2015, 2:48 PM), http://www.nydailynews.com/opinion/waldman-clementi-ending-cyberbullying-epidemic-article-1.2381804.

The Case for Uber Data Sharing, GOTHAM GAZETTE (Nov. 19, 2014), http://www.gothamgazette.com/index.php/opinion/5443-the-case-for-uber-data-sharing-ari-waldman.

When Gays Hold Hands, FOURTWONINE MAGAZINE, Mar. 2014, at 54.

The Injustice of HIV Criminalization, BETA JOURNAL, May 3, 2013.

Is Canadian HIV Law Taking a Step in the Wrong Direction?BETA JOURNAL, Nov. 9, 2012.

The Affordable Care Act Survives – What Now?, BETA JOURNAL, July 16, 2012.

Governor Should Sign Bill to Include Gays in School Social Studies, THE SACRAMENTO BEE, July 13, 2011, at 13a.

The Death of a Rutgers Student Cries Out for a Legal Remedy that our Criminal Justice System Simply Does Not Provide, THE DAILY JOURNAL, Oct. 11, 2010, at 1.

A Two Pronged Strategy is Key to Protecting Gay Rights, THE DAILY JOURNAL, Dec. 27, 2010, at 6.

The Death of a Rutgers Student Cries Out for a Legal Remedy that our Criminal Justice System Simply Does Not ProvideTHE DAILY JOURNAL, Oct. 11, 2010, at 1.

A Hero’s Leap Forward: Overturning Prop 8, THE DAILY JOURNAL, Aug. 9, 2010, at 4.

Blogging

Privacy Issues Expert at About.com, at privacy.about.com, writing and editing general-audience essays educating the public about privacy rights, privacy-related news and developments, and the law (2014-2016).

Legal Editor at Towleroad, at http://www.towleroad.com/ari-ezra-waldman/, writing and editing general audience essays on LGBT law (2010-Present).

Contributor at Concurring Opinions (recurring)

Contributor at PrawfsBlawg (recurring)
Recent Posts:
“State v. Dharun Ravi: What Happened,” Sept. 12, 2016.
“State v. Dharun Ravi: The Appeal,” Sept. 14, 2016.
“State v. Dharun Ravi: A Culture of Homophobia,” Sept. 19, 2016.
“Nonconsensual Pornography and the ‘Gay Bachelor’,” Sept. 20, 2016.
“State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons,”Sept. 21, 2016.