Spring 2025
Featured Article
The Contractual Death and Rebirth of Privacy
Robin Bradley Kar & Xiaowei YuThis Article proposes, for the first time, the application of “shared meaning analysis” — a method of contract interpretation grounded in traditional contract principles, as developed in Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019) (“PseudoContract”) — to online privacy policies. The method identifies when policy text adds enforceable terms to a contract, as opposed to mere unenforceable boilerplate, addressing an underappreciated paradigm slip in contract law that is enabling widespread digital surveillance. Consumers routinely click “I...
Geofence Searches Are Not (Necessarily) Carpenter Searches
By Pedro Silva - Edited By Shriya SrikanthPedro Silva received a J.D. from Harvard Law School, where he was the Notes and Comments editor for the Harvard Journal of Law & Technology. Before law school, Pedro was a software engineer at Google developing cloud cryptography systems. He graduated from Northeastern University with a degree in Computer Science and Mathematics. His writing focuses on how technology is shaping constitutional law, privacy, and jurisprudence. Over the last year, the Fourth and Fifth Circuits have created a split over the...
The Contractual Death and Rebirth of Privacy
This Article proposes, for the first time, the application of “shared meaning analysis” — a method of contract interpretation grounded in traditional contract principles, as developed in Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019) (“PseudoContract”) — to online privacy policies. The method identifies when policy text adds enforceable terms to a contract, as opposed to mere unenforceable boilerplate, addressing an underappreciated paradigm slip in contract law that is enabling widespread digital surveillance. Consumers routinely click “I agree” to online privacy policies — which purport to permit cookies, other tracking devices (like pixels and SDKs), and AI-driven data analysis — without reading or comprehending their text, leading to massive transfers of personal information that erode privacy, facilitate consumer and political manipulation, and threaten freedom and democracy. Critiquing the binary debate over whether online privacy policies are contracts at all, this Article argues for a more nuanced reform: courts, operating within their common law authority, should revive privacy by focusing contract interpretation on the shared meanings of any contracts over privacy formed in digital contexts. Through examples involving policy scope, unilateral modifications, and conflicts between shared meaning and deceptive boilerplate, this Article demonstrates how contract interpretation — once returned to its rightful focus on shared meaning — can be used to counter modern surveillance harms without requiring new legislation, complementing other privacy frameworks and restoring the proper moral relationship between contract and privacy.