Brett Frischmann
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brettfrischmann.bsky.social
Brett Frischmann
@brettfrischmann.bsky.social
2K followers 1.4K following 480 posts
Interdisciplinary researcher & teacher (Villanova Univ.). Infrastructure. Knowledge Commons. Re-Engineering Humanity. Tech & Humanity/Society. IP Theory. Lately, Friction-in-design, Age Gating. TEDx: https://www.youtube.com/watch?v=SgbC3hmhHAU
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brettfrischmann.bsky.social
July 31, 2025 at 2:17 PM
brettfrischmann.bsky.social
Reminds me of the Letter to the Editor in Scientific American back in 2019:
For example, he envisions a digital dou- ble going on millions of virtual dates and living countless probable lives so that it can deliver you the optimal romantic part- ner and life. But life and romance are not algorithmic optimization problems com- prehensible in the language of computa- tion. What if the costs of going on some bad dates let you to learn something about yourself and others? How will you know what you want without any experiences?
July 11, 2025 at 7:36 PM
brettfrischmann.bsky.social
In just a few weeks!!!
May 20, 2025 at 7:59 PM
brettfrischmann.bsky.social
A Defense of Demonstrably Informed Consent in Privacy Governance. Outline.
Outline 1. Introduction 2. Preliminaries on the concept of consent 3. Consent is necessary but insufficient a. Consent is necessary for privacy b. Consent is insufficient for privacy 4. Scholarly and policy arguments about consent identify shortcomings of existing consent mechanisms but fail to engage adequately with mechanism design that could improve consent mechanisms a. Failed disclosure mandates b. Transaction cost analysis c. Cognitive biases d. Consumer beliefs and preferences 5. Reform proposal a. Need and opportunity for reform b. Legal requirement of demonstrably informed consent c. Friction-in-design mechanisms to operationalize demonstrably informed consent d. Role of standards, regulations, and courts 6. Some applications and preliminary experiments a. Human subjects research b. Parental consent c. Lawyer-client confidentiality requires informed consent of client when lawyer inputs information pertaining to representation in a GenAI tool d. Cookie consent mechanisms e. Digital contracts with privacy terms i. App download ii. Course management software log-in iii. Commercial website / service iv. Gym membership f. Photograph and recording consent and release form 7. Responding to anticipated objections 8. Conclusion
May 12, 2025 at 4:43 PM
brettfrischmann.bsky.social
A Defense of Demonstrably Informed Consent in Privacy Governance. Abstract, page 2/2.
For privacy laws generally, child privacy in particular, and many related areas of law where parental consent is required, this article proposes a new legal standard of demonstrably informed consent. This rule would put the burden on the party drafting and designing consent mechanisms to generate reliable evidence that a person actually understands the consequential terms to which the person agrees. A doctrine that requires actual comprehension, rather than notice and assent, is feasible and normatively desirable. Of course, determining what are the substantively important terms presents an issue where regulation or court decisions may be required. Technically, companies can test and develop mechanisms for generating reliable evidence of informed consent to substantively important terms. Notably, this will require more than mere disclosure. It requires comprehension, and thus teaching and confirmation that a person understands terms to which the person agrees. Digital mechanisms that utilize prosocial friction-in-design for such purposes already exist, but there is no incentive to deploy them. The new demonstrably informed consent standard would change that. ... While it may seem mundane, learning about the digital terms that govern so much of our modern lives would constitute a significant social benefit. After all, learning about the terms of trade is the only way to have a preference about those terms; it is the only basis for making demands that drive competition or even legal change. A demonstrably informed consent standard would press companies to explain, teach and confirm understanding in order to obtain consent. Over time, this process can empower consumers, whether to drive competition or to advocate politically for meaningful privacy laws.
May 12, 2025 at 4:41 PM
brettfrischmann.bsky.social
A Defense of Demonstrably Informed Consent in Privacy Governance. Outline
Outline 1. Introduction 2. Preliminaries on the concept of consent 3. Consent is necessary but insufficient a. Consent is necessary for privacy b. Consent is insufficient for privacy 4. Scholarly and policy arguments about consent identify shortcomings of existing consent mechanisms but fail to engage adequately with mechanism design that could improve consent mechanisms a. Failed disclosure mandates b. Transaction cost analysis c. Cognitive biases d. Consumer beliefs and preferences 5. Reform proposal a. Need and opportunity for reform b. Legal requirement of demonstrably informed consent c. Friction-in-design mechanisms to operationalize demonstrably informed consent d. Role of standards, regulations, and courts 6. Some applications and preliminary experiments a. Human subjects research b. Parental consent c. Lawyer-client confidentiality requires informed consent of client when lawyer inputs information pertaining to representation in a GenAI tool d. Cookie consent mechanisms e. Digital contracts with privacy terms i. App download ii. Course management software log-in iii. Commercial website / service iv. Gym membership f. Photograph and recording consent and release form 7. Responding to anticipated objections 8. Conclusion
May 12, 2025 at 4:38 PM
brettfrischmann.bsky.social
A Defense of Demonstrably Informed Consent in Privacy Governance. Abstract, page 1/2.
This article argues that consent is a necessary but insufficient mechanism for privacy governance. First, it explains why consent is necessary. Practically speaking, consent will not be replaced fully with substantive regulation. It is too deeply embedded in societal understanding of and expectations about privacy; there are good normative reasons for affording people meaningful agency in governing their data and other privacy-relevant relations with others. Second, the article explains why consent is insufficient, leveraging extensive scholarship on the limitations of consent and the social/relational consequences of privacy. (See, e.g., Cohen 2019; Cohen 2012; Viljoen 2021). Third, the article explains how and why arguments about consent miss the mark by failing to engage with plausible mechanisms for improving how it works operationally (See Elvy 2024; Frischmann & Vardi 2025). Fourth, the article argues in favor of legal regulation requiring demonstrably informed consent and implementation of friction-in-design mechanisms that would operationalize that legal requirement (Id.). Finally, the article describes interdisciplinary experimental work testing such mechanisms. Some privacy scholars argue consent mechanisms ought to be replaced with better privacy laws grounded in substantive rules and duties, such as a duty of loyalty (See, e.g., Richards & Hartzog 2021; Susser 2019). Other privacy scholars argue that “murky consent” should be tolerated but recognized as not fully legitimate (See Solove 2024; Elvy 2024). Consent, whether based in the notice-and-choice approach (US) or the express consent approach (EU), is heavily criticized for failing to achieve its basic normative objective, which is affording people a reasonable degree of autonomy in governing their privacy. The reasons for such failure are many, ranging from consent mechanism design to cognitive burdens, decision fatigue, and coercion (see, e.g., Bailey et al. 2021; Solove 2024).
May 12, 2025 at 4:38 PM
brettfrischmann.bsky.social
Must read. @randomwalker.bsky.social is coming to Villanova in March 19th! Will post more details soon. Need to unpack a few more boxes
March 10, 2025 at 1:58 PM
brettfrischmann.bsky.social
Birthday gifts for Jake. He loved Old Mans War @scalzi.com
January 10, 2025 at 8:48 PM
brettfrischmann.bsky.social
My draft Review Session slide re. use of Gen AI on the final
Can we use ChatGPT or other genAI? No. Why not? There’s no need, it’s not helpful, … not skills we’ve focused on, too easily leads you astray, too difficult to properly attribute authorial responsibility, not an equal playing field for all students in the class, … [I could go on and on, as you know.] Bottom line: No. Not difficult to detect. Not worth it. Violation of my exam rules = violation of honor code, can have serious consequences not only for grading in this course, but with law school, bar admission, etc. But please, use spell check and grammar check functions in word processing software. You see? I am no Luddite. Some AI is allowed!!!
December 2, 2024 at 6:01 PM