SJ Quinney College of Law, University of Utah

Utah OnLaw: The Utah Law Review Online Supplement


It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. As Professor Ghosh points out, a judicial response that simply argues for the marketplace to sort all this out on its own is undertheorized and insufficient.