Tag Archives: legislation

New on SSRN: “The New Public Accommodations”

A full draft of my article “The New Public Accommodations,” coauthored with Aaron Belzer, is now available on SSRN. Here’s the abstract:

The sharing economy raises important new questions about public accommodation laws. Such laws originally were enacted to prohibit establishments open to the public—for example, hotels, restaurants, taxi services, and retail businesses—from discriminating on the basis of characteristics such as race, color, religion, and national origin. Sharing economy businesses are functional substitutes for these traditional public accommodations. Yet existing public accommodation laws are not always a good fit for the unique features of the sharing economy.

This Article is the first to argue that public accommodation laws must evolve to address race discrimination in the sharing economy. Available evidence suggests that, in many circumstances, race discrimination affects the sharing economy in much the same way it affects the traditional economy. Sharing economy businesses use online platforms to connect providers of goods and services (drivers; landlords) with users of those goods and services (passengers; renters). These platforms often make race visible to both providers and users by requiring that they create profiles that include names, photographs, and other information. Such profiles may trigger conscious and unconscious bias and result in discrimination even if the parties never meet in person. Moreover, sharing economy businesses encourage or even require providers to rate users. Rating systems aggregate biases, and users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

This Article examines existing public accommodation laws—Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the Fair Housing Act—and concludes that they hold considerable promise for remedying discrimination in the sharing economy. Nonetheless, the sharing economy presents new issues that existing laws do not entirely address. To the extent that sharing economy businesses perform the same function as traditional public accommodations yet escape existing laws, we argue that those laws should be amended and briefly describe the form the new laws should take.

Feedback is very much welcome–please feel free to contact either me or Aaron.

Michael Smith: Regulating Law Enforcement’s Use of Drones

I learned a lot from this paper by recent UCLA Law grad Michael Smith. Smith offers a compelling argument that the judiciary is ineffective at addressing privacy issues raised by advances in drone technology. He instead advocates state legislation to balance the privacy and law enforcement interests that drones raise.

Here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

You can also read Michael’s very interesting blog here. He writes regularly about privacy and technology issues as well as other areas of the law.