Known and Unknown, Property and Contract: Comments on Hoofnagle and Moringiello
James Grimmelmann and
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James Grimmelmann: Cornell University
No uthxq, LawArXiv from Center for Open Science
5 Brooklyn Journal of Corporate, Financial & Commercial Law 85 (2010) In addition to gerund-noun-noun titles and a concern with the misaligned incentives of businesses that handle consumers' financial data, Chris Hoofnagle's Internalizing Identity Theft and Juliet Moringiello's Warranting Data Security share something else: hidden themes. Hoofnagle's paper is officially about an empirical study of identity theft, but behind the scenes it's also an exploration of where we draw the line between public information shared freely and secret information used to authenticate individuals. Moringiello's paper is officially a proposal for a new warranty of secure handling of payment information, but under the surface, it invites us to think about the relationship between property and contract in the payment system. Parts I and II, respectively, of this brief essay explore these hidden themes in Hoofnagle's and Moringiello's articles. I hope the exercise tells us something interesting about these two papers, and also about the problems of privacy and security in the payment system. A brief conclusion adds a personal note to the mix.
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