The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924OdolOpinion of the Elberfeld Landgericht

The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924 Odol Opinion of the Elberfeld Landgericht , in Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur 460 (Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin and Ansgar Ohly, eds., Cambridge University Press, 2021)

The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924 Odol Opinion of the Elberfeld Landgericht, in *Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur* 460 (Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin and Ansgar Ohly, eds., Cambridge University Press, 2021)

Barton Beebe, The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924 Odol Opinion of the Elberfeld Landgericht, in Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur 460 (Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin and Ansgar Ohly, eds., Cambridge University Press, 2021)

As a full reading of the Elberfeld Landgericht's Odol opinion will confirm, trademark dilution, at least in its origins, was a misappropriation law concept rather than a trademark law concept. The Odol court did not speak of anything like "search costs,,6 or "imagination cost,"7 or of "blurring"S or "tarnishment."9 Instead, with reference to the defendant's conduct, the essence of the court's holding was that "[ilt is contrary to good morals to appropriate the fruits of another's labor in this manner, knowing that the other will or could be harmed by doing so.",o Indeed, in the final paragraph of the opinion, the Odol court explicitly stated that having resolved the matter before it under German misappropriation law, "it is not necessary to examine whether the complainant's claims are also justified on the basis of trademark law."" In short, Odol was a misappropriation case in which the misappropriated property at issue happened to be a trademark. But Schechter sought in various ways to conceal the fact that antidilution protection was a form of misappropriation law. For example, though he provided a lengthy block quotation from the Odol opinion in the conclusion of his "Rational Basis" article,12 there is one sentence from the opinion that he appears deliberately to have replaced with an internal ellipsis: the sentence quoted above stating the essence of the court's holding that the defendant had misappropriated the fruits of another's labor. Why would Schechter have sought to obscure antidilution protection's true genealogy? As explained in detail elsewhere,'3 Schechter was writing at the time to a legal community increasingly under the influence of American Legal Realism, particularly at his intellectual home, Columbia Law School. Exponents of legal realism were openly contemptuous of the majority in International News Service. More generally, Schechter likely sought to obscure the degree to which the antidilution doctrine he was promulgating in his "Rational Basis" article was essentially formalist in nature. 16 This may help to explain why in "Rational Basis" Schechter offered so many different formulations of the concept of trademark dilution, some of them not always consistent with each other. 17 But Schechter's contemporaries saw through his ruse. Felix Cohen's 1935 article "Transcendental Nonsense and the Functional Approach" remains one of the most important and influential works of American Legal Realism. 18 In it, Cohen levelled a scathing attack on "Rational Basis," accusing it of "economic prejudice masquerading in the cloak of legallogic"'9 and repeatedly using the phrase "vicious circle" to describe Schechter's purportedly circular reasoning."" Other scholars, even those sympathetic to it, similarly recognized the basic formalism of Schechter's version of antidilution protection. 2l But Schechter's efforts at disguise did eventually succeed in at least one respect. The many different definitions of trademark dilution that appear in "Rational Basis" sufficiently confused the concept that it would become, at least for subsequent generations of trademark lawyers, a great mystery as to what exactly trademark dilution is. Further complicating matters was that Elberfeld Landgericht's opinion in Odol formulated the concept of trademark dilution both in terms of the tort of misappropriation and a potential violation of unfair competition law. Into the void of meaning could flow incoherent concepts like trademark blurring and trademark tamishment and the inane notion that antidilution protection ultimately seeks to minimize consumers' "imagination costs."'" Perhaps a return to the clear and straightforward discussion of the concept originally offered by the Odol court will help to clarify that trademark antidilution law is essentially misappropriation law -'5 ld. at 239. ,6 See Beebe, supra note 4> at 75 (discussing "the essentially fonnalist spirit of Schechter's proposed test for dilution -which would simply ask (1) does the plainti!!'s mark qualify for antidilution protection by virtue of its inherent distinctiveness and fame, and (2) is the defendanfs mark identical or closely similar to the plaintifl's mark?" n See Ty, Inc. v. Perryman, 306 F'3d 509, 5" (7th Cir. 2002). albeit one that, as Graeme Dinwoodie has emphasized, is best understood within the broader context of unfair competition law"3 -and perhaps this will help clarify for American courts exactly why so many of them, "all realists now,""'! are reluctant to grant antidilution protection. Odol May Not Be Permitted To Be Used Even for Goods Entirely Dissimilar to Mouthwash. Decision of the District Court of Elberfeld, '4 September '924, 13. 0 . 8 9'24. Facts 1 The complainant filed suit requesting the court to order the respondent to consent to the cancellation of the word mark registered at the patent office under the file number M 35877'9b Wz in connection with the respondent's business operation, a steel goods factory, and its goods, which include cutlery and cutting tools, to order the respondent to compensate the complainant for all damages it has incurred or will incur from the respondent's use of the mark "Odol," and finally to prohibit the respondent under threat of penalty from affixing the mark "Odol" to its goods and their packaging or wrapping, from placing goods thus labeled on the market, and from affixing the mark on its announcements, price lists, business letters, remittances, invoices, and the like. 2 The complainant asserted that the wordmark "Odol" was registered to it on 5 March 1895 on the trademark register and has been used by the complainant since that time as a mark for its mouthwash and toothpaste. had filed for registration of the wordmark "Odol" for its business operation, a steel goods factory, and for its goods, which include cutlery and cutting tools and skin care and nail care articles. The registration was granted, except with respect to skin care and nail care articles. However, the complainant requested that the remaining registration also be cancelled. The respondent requested that the complaint be dismissed. Documents relating to the protection of the complainant's wordmark are attached. The written submissions are referenced. Grounds for the Decision 3 The court considers the complaint to be well-grounded in S 826 of the Civil Code. 4 After the complainant proved that the word "Odol" had long since been registered to it as a trademark, the respondent no longer contested this fact. It is furthermore known to the court that the complainant firm and the mouthwash it produces are referred to by the name "ado!." It can therefore well be said that the word "Odol" developed into a catchword that has come to distinguish the complainant's goods and has acquired an advertising strength that goes beyond the otherwise typical function of trademarks, such that when anyone reads or hears the word "Odol," they think of the complainant's mouthwash. These facts are of the utmost importance for the complainant firm: their goods have a good reputation, and any goods bearing the name "Odol" can presume to have the reputation among the public of being of high quality. 5 As a result, the complainant has the greatest interest in ensuring that its mark not become diluted; it would lose in advertising strength if everyone were to use it to designate their goods. The trademark will become devalued, if it is used for other, wholly different goods. 5 Die Klagerin hat infolgedessen das groj3te Interesse daran, daj3 ihr Zeichen nicht verwassert wird; es wiirde an Werbekrafl: einbiij3en, wenn jedermann es zur Bezeichnung seiner Waren verwenden wiirde. Das Warenzeichen wird fur die Waren der Klagerin entwertet, wenn es fur andere ganzlich verschiedene Waren verwendet wird. steel goods with the obvious intention to profit from the strength of the mark for the distribution of its goods. There are, of course, innumerable fine-sounding words that the respondent could have used to designate its goods; in choosing precisely the word "Odol," it is clear that the respondent did so because the mark has acquired an especially good reputation as a result of the efforts of the complainant. The respondent furthermore must have recognized, and surely did, that there was at least a possibility that its actions would cause damage to the complainant. Knowing this, the respondent had its mark registered nonetheless; that is to say, it behaved at least with reckless intent. It is contrary to good morals to appropriate the fruits of another's labor in this manner, knowing that the other will or could be harmed by doing so. Also the respondent must recognize that when anyone calls his goods "Odol," the word "Odol" loses value for the complainant. 7 To be sure, the parties cannot be said to stand in competition with one another due to the completely different nature of the goods they sell. This, however, is beside the point. The respondent advertised its products by means of a word with strong appeal that had acquired this appeal precisely through the years-long and extensive activity of the complainant. Paragraph S 1 of the Law against Unfair Competition can also serve to support the claim, because this legal provision does not require that the company acting contrary to good morals stand in competition with the company seeking an injunction and damages. Instead, it is enough that the company against which claims have been asserted intervenes in a manner that hinders competition between two competitors (see Rosenthal Note 63 at S 1). Here, however, the complainant's ability to compete, specifically its ability to compete 'Old. at 8'4--S15. n See, e.g., John Wolff, Non-Competing Goods in Trademark Law, 37 COLUM.L. REv. 582, 6c2 (1937) (comparing antidilution protection to misappropriation protection in International News Se",ice). See also Beebe, supra note 4> at 75--"76 (discussing Wol!!'s criticisms of Schechter's concept of dilution). suggests that that characterization of the cause of action [as misappropriation] need not result in fOmIalist, unlimited protection of property. Instead, if understood as part of unfair competition law, there is hope that it can escape the formalism that (may have) motivated Schechter and provide a measured form of relief reflecting a common normative impulse without imperiling free competition."}."4 Joseph William Singer, Legal Realism Now, 76 CAL. L.REv. 465, 467 (1988).


The Great Regulatory Dodge

" The Great Regulatory Dodge ," 37 Harv. J.L. & Tech. 1231 (2023) (with Helen Nissenbaum and Salomé Viljoen)

"The Great Regulatory Dodge," 37 *Harv. J.L. & Tech.* 1231 (2023) (with Helen Nissenbaum and Salomé Viljoen)

Helen Nissenbaum et al., The Great Regulatory Dodge, 37 Harv. J.L. & Tech. 1231 (2023)

Helen Nissenbaum
Katherine J. Strandburg
Salomé Viljoen

U.S. privacy law confronts a renewed moment of possibility. Following the European Union's enactment of the General Data Protection Regulation ("GDPR"), 4 numerous states are debating and enacting sweeping consumer privacy laws, with Congress considering similar proposals. 5 These new "omnibus" laws are often favorably contrasted 5. Brenna Goth & Skye Witley, Data Privacy 'Panoply' Looms as States Move to Fill Federal Hole, BLOOMBERG L. (Jan. 19, 2023), https://www.bloomberglaw.com/bloomberg lawnews/privacy-and-data-security/X8ID0VLS000000?bna_news_filter=privacy-and-datasecurity#jcite [https://perma.cc/DNU8-77QQ] ("Broad privacy bills filed in eight states so far this year would, if enacted, add to laws in California, Virginia, Connecticut, Utah, and Colorado."). Omnibus or otherwise cross-contextual privacy bills being considered this congressional term include the Stop Spying Bosses Act, S. 262, 118th Cong. (2023) (Sen. Robert The Great Regulatory Dodge 1233 with the current patchwork of sectoral privacy laws stitched atop the backdrop of the Federal Trade Commission's ("FTC's") consumer protection enforcement. 6 A one-size-fits-all omnibus approach is insufficient, however, to capture privacy's contextual variability, which is keyed not to individual preferences and "consent" but to disparate social spheres. Privacy regulation must embody contextual privacy norms that promote the functions, goals, and values of particular social domains. Omnibus regulation alone is likely to be overly broad in some cases and overly narrow in others. Sectoral privacy regulations can complement omnibus laws by instantiating the plurality of information-sharing norms in different settings and relationships. The present U.S. sectoral regime has significant shortcomings, however, and intuitively apparent privacy violations are rampant. Companies leverage these shortcomings to dodge the spirit and letter of sectoral laws and thus violate contextual integrity. Addressing these "regulatory dodges" is essential to enhancing the efficacy of sectoral privacy protection. As long as there has been law, some have sought to evade it. Corporate actors do so to minimize their regulatory costs and gain competitive advantage. Technologies and business practices invariably evolve in the shadow of governing legal rules. 7 We do not purport to (re)discover age-old concepts of regulatory arbitrage and evasion. Instead, we analyze how regulatory dodges emerge in a domain significantly transformed by digital technologies. This analysis can help us design better privacy laws. Information assets are like stem cells: they can grow into a variety of commercially exploitable insights across a range of distinct commercial sectors, endowing companies with "predictive power" they can use across various settings. 8 6. See, e.g., Daniel Solove, The Growing Problems with the Sectoral Approach to Privacy, PRIV. + SEC. BLOG (Nov. 13, 2015), https://teachprivacy.com/problems-sectoral-approach-privacy-law [https://perma.cc/7RFV-8VCC] (detailing the gaps, complexities, redundancies, and inconsistencies of the sectoral approach and suggesting the United States should move to "at least a baseline omnibus privacy and data security law"); Saryu Nayyar, Is it Time for a U.S. Version of GDPR?, FORBES (Feb. 1, 2022), https://www.forbes.com/sites/forbestech-council/2022/02/01/is-it-time-for-a-us-version-of-gdpr [https://perma.cc/4JAW-MHMA] ("The U.S. federal government already regulates data protection and privacy on a nationwide basis, albeit only for specific industries. . . . [T]hese [sectoral] regulations, along with some of the specifics from the GDPR, are good starting points for developing an all-encompassing federal data protection and privacy law."). 7. See JULIE COHEN, BEYOND TRUTH AND POWER 2 (2019). 8. Katharina Pistor, Rule by Data: The End of Markets?, 83 L. & CONTEMP. PROBS. 101, 106 (2020); Roxana Vatanparast, The Code of Data Capital: A Distributional Analysis of Law in the Global Data Economy, 2021 JURIDIKUM 98, 108. For further treatment of predictive entities; they can morph from providing advertising insights to health insurance profiles to financial services relatively seamlessly (with perhaps a strategic merger or acquisition). 9 As a result, the digital economy is particularly vulnerable to regulatory dodge. Regulatory avoidance is also particularly troubling in the digital economy. Information and communication serve important infrastructural roles for commercial and non-commercial life. Dodges may introduce significant, network-wide competition concerns. Lax privacy rules for information infrastructures may threaten entities in other industries that rely on them. In such networked scenarios, it is difficult to trace adverse effects back to a particular instance of inappropriate flows of data. Given these challenges of opacity and structural accountability, individuals are especially reliant on effective regulation to protect them from information harm. We first focus on specific health (the Health Insurance Portability and Accountability Act of 1996 10 ("HIPAA")) and financial (the Gramm-Leach-Bliley Act 11 ("GLBA")) privacy regulations to elucidate two illustrative types of regulatory dodge. We then use the GDPR and the California Consumer Privacy Act 12 ("CCPA") (as amended by the Consumer Privacy Rights Act) to illustrate why omnibus regulation may not solve the problems. We conclude with proposals for designing more contextually sensitive, gap-free privacy law. The US traditionally regulates privacy primarily sector by sector rather than with an overarching omnibus framework. The list of federal statutes provided in Solove and Schwartz's An Overview of Privacy Law exposes the sectoral mosaic. 13 Some sectors have received considerable regulatory attention. The financial sector, for example, has attracted repeated legislation, such as the Fair Credit Reporting Act of 1970, 14 Bank Secrecy Act of 1970, 15 Right to Financial Privacy Act of 1978, 16 and the GLBA. Two federal statutes regulate health privacy: HIPAA and the Health Information Technology for Economic and Clinical Health Act of 2009, which are implemented in the HIPAA Privacy Rule. 17 The lacuna in federal regulation is obvious: sectoral statutes miss a large swath of consumer data handled by innumerable companies, small and large. Some companies provide digital services directly to consumers. Others collect data while providing physical services or products. Still others, including data brokers, provide back-end services to consumer-facing companies. These kinds of companies are regulated by general consumer protection laws, the most important of which has been Section 5 of the FTC Act. 18 Section 5 prohibits "unfair and deceptive trade practices," 19 which the FTC has interpreted primarily to require companies to adhere to their posted privacy policies and public statements. 20 The result is a regime of "notice and choice," which purports to give consumers "notice" of data practices in a privacy policy and a "choice" of whether and how to engage with a company. 21 In practice, this approach has allowed privacy policies to say virtually anything and enabled companies to pursue virtually any practices that conform to those policies. Study after study demonstrates that individuals are largely unable to negotiate, or even comprehend, privacy policies. 22 As a result, given the FTC's limited enforcement resources, the vast array of actors not covered by sectoral privacy law has been virtually immune from federal regulation. One response to gaps between sectoral privacy regulations and the notice and choice backstop has been to enact omnibus privacy laws that are, in theory, more broadly scoped than sectoral laws and stronger than notice and choice. In the ongoing debate about sectoral versus omnibus approaches, sectoral regulation supporters cite the importance of specific tailoring to the actors, information, and distinctive activities characterizing different sectors. 23 Omnibus regulation supporters counter that a sectoral approach is piecemeal and gap-filled, while only an omnibus approach can establish privacy protection as the default. 24 Acknowledging the merits on both sides, we consider how to avoid both sorts of failings in designing privacy regulation. We agree wholeheartedly that privacy law must be contextual, but U.S. sectoral privacy law is severely challenged by what we call "the great regulatory dodge." Here, we describe the dodge, explain why it is problematic, and outline ways to design regulation that foils it. We argue that recent omnibus laws are insufficiently contextual while remaining overly reliant on notice and choice. Our concluding proposals favor a privacy regime with strong general standards for the form and substance of contextually appropriate information flows while encouraging sector-specific rules based on those standards. Drawing on social theory, social philosophy, and law, Contextual Integrity Theory ("CI") conceives of social life as comprising distinct social domains ("contexts") such as commerce, education, finance, healthcare, civic life, family, and friends. 25 The defining features of a CI context are its ends, aims, or goals, which determine its contribution to society at large. Contexts also incorporate broader values, such as The Great Regulatory Dodge 1237 equality, justice, or individual autonomy. For example, healthcare may be oriented around curing disease, alleviating pain, and preventing illness, and be committed to values of equity and patient autonomy. The precise composition of ends and values may differ from society to society and be controversial and contested within societies. For example, individuals might disagree about whether the goals of education are to enlighten or train, to teach rote skills or encourage creativity, or to generate workers or produce good citizens. In a departure from predominant definitions of privacy as information control or secrecy, CI conceives of privacy as appropriate flow of information, meaning flow that conforms with contextual privacy norms. 26 Contextual privacy norms define acceptable data practices and may range from implicit and weak (e.g., social disapproval of friends betraying confidences) to explicit and embodied (e.g., professional rules protecting journalists refusing to name sources or requiring physicians to maintain confidentiality of health data). A complete statement of a contextual privacy norm provides values for five parameters: data subject, data sender, data recipient, information type (topic, attribute), and transmission principle. 27 Actors (i.e., data subjects, data senders, and data recipients) are labeled according to contextual capacities or roles, such as physician, nurse, lab technician, biomedical researcher, or health insurance company in a healthcare context. Information types are labeled according to contextual ontologies, which may include symptoms, diagnoses, pathogens, or medication, in a contemporary healthcare context. Transmission principles are the conditions, or constraints, under which data about subjects flows from senders to recipients. Consent is just one such principle. Others include requirement, confidentiality, reciprocity, or, familiar to lawyers, "with a warrant." A rule based only on whether data is "sensitive" or only on whether a subject has consented is not only ambiguous and incomplete but is unlikely to hold true across all social contexts. Following the CI schema, the appropriateness of an information flow depends on all five parameters. To remain relevant in a world characterized by unjust social relations and rapidly changing technologies, a normative conception of privacy must be able to adjust, neither simply bowing to disruptive flows nor digging in its heels despite disruption. CI's approach to evaluating informational norms and disruptive data practices is applicable to entrenched norms (e.g., rules and laws) or disruptive information practices. It probes: (1) whose interests are affected and how; (2) how contextual goals, purposes, and values are affected; and (3) how societal values, including fundamental liberties and rights, are affected. 28 CI thus explicitly highlights the critical relationship between information flows and contextual ends. While privacy is almost always seen as an individual interest, to be balanced against other interests, CI adopts the idea, introduced by Priscilla Regan, that privacy is a societal value. 29 In practice, the appropriateness of particular information flows often must be interpreted through legitimate governance institutions, both formal and informal. 30 This discussion explains why a simplistic omnibus approach is unsatisfactory, potentially squandering privacy's regulatory moment on a regime that poorly fits the complex social relations that information flows reflect and enact. While omnibus laws attempt to import flexibility through notice and consent, that approach is unworkable in the modern world where it is impossible for individual data subjects to meaningfully assess the choices they are presented with. Equally important, a consent-based approach is normatively indefensible because it neglects privacy's societal role in promoting contextual functions, ends, and values; addressing collective action problems (e.g., public health); or addressing the interests of disfavored minorities. 31 This critique suggests the merits of the US sectoral vision. However, as we discuss below, sectoral laws are vulnerable to "dodges," in which information flows that implicate contextual goals and values escape regulation as a result of regulatory design flaws. We define a "regulatory dodge" to mean the use of legal affordances (in combination with technical means and corporate structures) to circumvent the spirit or letter of existing sectoral privacy regulation. We explore the anatomy of two types of "dodges" -"scoping" and "exceptions" dodges -illustrating them with case studies drawn from different sectors, healthcare and finance, regulated by different sectoral privacy laws. There are undoubtedly other categories of dodges that could be examined, but we believe these are both important and exemplary. "Scoping dodges" exempt companies from regulations that seemingly ought to apply to them because their activities are similar to those of covered entities. Scoping dodges often arise when laws "scope" their The Great Regulatory Dodge 1239 obligations around certain actor types, taking them to be reliable proxies for the activities that deserve regulation. Scoping dodges may be unanticipated at the time of drafting and emerge later due to social, institutional, and technological upheaval, when traditional roles are disassociated from relevant activities, as illustrated here in the healthcare context. Scoping dodges violate contextual integrity by regulating only some of the activities triggering similar privacy concerns in the targeted sector. "Exception dodges" occur when companies covered by a privacy law focus on activities that come within exceptions to the law's obligations. While such legal exceptions are intentional, they become "dodges" when they produce unanticipated and undesired loopholes and distortions. Relevant activities may evolve over time or may be intentionally designed to fit within an exception. Exception dodges can distort business activities, sometimes to the point where the exception essentially swallows the rule, as we discuss below using a case study from the financial sector. Downloaded by millions 32 and touted as the number one mobile product for women's health, fertility apps would seem to be good candidates for coverage by a sectoral law such as HIPAA. Yet, unless used under a doctor's supervision, they are primarily governed like other commercial mobile apps, not health services. 33 "Covered entities" under HIPAA's Privacy Rule include healthcare providers and those who provide direct services to these healthcare providers, as well as insurance companies. 34 Certain "business associates" are also subject to HIPAA regulation, 35 but health-related apps that operate direct-to-consumer escape HIPAA's coverage; as a result, at the federal level, fertility app privacy is regulated primarily by the FTC's enforcement of Section 5's ban on "unfair and deceptive trade practices." 36 Some of the most popular fertility apps include Glow, Ovia, Flo, and Clue. 37 These apps market themselves as offering users greater access to, control over, and accuracy of prediction related to their fertility. 38 The apps offer a range of health and fertility-related services as well as different business models. Clue, for example, is available in both free and subscription (paid) versions, but emphasizes its non-freemium business model and their German location (i.e., subject to EU privacy law) as evidence of the company's credible commitment not to monetize or disclose user data. 39 Both Glow and Ovia Health go beyond period tracking to offer pregnancy and early parenting services. 40 Flo even tracks menopause. 41 Ovia offers its apps directly to consumers, but also has partnerships with employment benefits plans. 42 Partnership beneficiaries can sign in with their plan information to access premium tools and features including health coaching, personalized benefits Significant Proposed Changes, LEXOLOGY (June 9, 2023), https://www.lexology.com/ library/detail.aspx?g=60a3135c-9d25-45af-b03a-e505b6fca049 [https://perma.cc/R8P6-JMBX] (discussing the impact of the FTC's new enforcement strategies). 37. Glow claims over twenty-five million users worldwide. GLOW, https://glowing.com [https://perma.cc/U78Y-PYEM]; Ovia claims a community of over fifteen million users. Ovia: Fertility, Cycle, Health, APPLE APP STORE, https://apps.apple.com/us/app/ovia-fertil-ity-cycle-health/id570244389 [https://perma.cc/T72N-YCHY]. Flo bills itself as the top period and ovulation tracker worldwide with over 250 million users. FLO, https://flo.health [https://perma.cc/Q2XF-KWRD]. Clue claims eleven million monthly active users. CLUE, https://helloclue.com [https://perma.cc/6QSX-JJDB]. 38. Clue offers users a way to "live in sync with [their] cycle," CLUE, https://helloclue.com [https://perma.cc/6QSX-JJDB]; Flo states that one reason "millions of women are using Flo" is for its "accurate predictions," FLO, https://flo.health [https://perma.cc/Q2XF-KWRD]; Ovia Health promotes its algorithm as the "most accurate ovulation tracker and fertility tracker," claiming accurate predictions even for "women with irregular periods trying to conceive," Ovia: Fertility, Cycle Health, GOOGLE PLAY (July 18, 2023), https://play.google.com/store/apps/details?id=com.ovuline.fertility [https://perma.cc/5R5J-YW73]; Glow offers users a way to "take control" of their reproductive health, Glow: AI Fertility Ovulation Tracker, GOOGLE PLAY, https://play.google.com/store/apps/de-tails?id=com.glow.android [https://perma.cc/3WWG The Great Regulatory Dodge 1241 content, and programs covering birth control tracking, endometriosis education, personalized health programs, and one-on-one coaching. 43 Fertility apps can collect rather detailed and extensive data related to menstruation and female fertility. Apps allow users to track their cycles, weight, basal body temperature, cervical fluid changes, and results of ovulation and pregnancy tests. 44 They can track symptoms over time, such as head or body aches, daily moods or mood changes, sleeping patterns, energy levels, sex drive, and food cravings. 45 Some apps integrate with wearables, so users can sync app data with wearable-collected data on weight, sleep, and physical activity. 46 Glow, which covers pregnancy and early parenthood, can collect data on fetal development and newborn developmental milestones, breastfeeding habits and timing, and diaper changes. 47 Given fertility apps' functions and how they are promoted, U.S. users might expect them to be governed by HIPAA's Privacy Rule, the primary federal law governing healthcare data. Instead, direct-to-consumer fertility tracking is primarily regulated under the FTC's Section 5 authority, though HIPAA may apply to usage under physician supervision or in partnership with an insurer. 48 For direct-to-consumer markets, these companies' privacy policies are virtually indistinguishable from those of myriad other consumer apps. This unfortunate gap in HIPAA's coverage results from its design. HIPAA was intended to facilitate the use and portability of electronic health records. Congress directed the Department of Health and Human Services to promulgate privacy regulations because effective medical treatment depends on people's trust, and the "proliferation of electronic records" had increased the risk of unauthorized disclosures. 49 The resulting HIPAA Privacy Rule protects personal health information ("PHI"), defined as any health status, treatment, or healthcare payment information that can be linked to an individual. 50 The Privacy Rule regulates the use and disclosure of PHI and establishes several patients' rights over health information. 51 With a few contextually defined exceptions, sharing PHI requires written consent from the patient and is governed by data minimization requirements. 52 HIPAA's scope is limited, however. The Privacy Rule applies to "covered entities" 53 and to "business associates." 54 "Covered entities" include health plans, health care clearinghouses, and any "health care provider who transmits any health information in electronic form in connection with a [covered] transaction," meaning "financial or administrative activities related to health care." 55 "Health care provider" includes any "person or organization who furnishes, bills, or is paid for health care in the normal course of business." 56 "Health care" includes "care, services, or supplies related to the health of an individual." 57 The vast majority of doctors and hospitals are thus "covered entities." While fertility app companies arguably meet the definition of health care provider, they generally do not transmit PHI in connection with covered transactions. 58 Fertility app companies, possibly excepting those that partner with covered entities, escape the definitional clutches of both "covered entity" and "business associate." The resulting scoping dodge emerges from HIPAA's implicit assumptions about roles and information flows in the healthcare context. The American Recovery and Reinvestment Act of 2009 59 ("ARRA") "recognize [d] The Great Regulatory Dodge 1243 manage . . . personal health records." 60 ARRA required the FTC to issue a temporary data breach notification rule covering such entities. 61 The FTC noted the gap created because "entities offering these types of services are not subject to the privacy and security requirements of" HIPAA 62 and promptly promulgated the Health Breach Notification Rule ("HBNR"). 63 The broader regulatory enterprise then stalled, and the HBNR was essentially dormant. 64 Recently, and controversially, the FTC has begun to enforce the HBNR expansively against health app companies. 65 notification laws may ordinarily target "cybersecurity intrusions or nefarious behavior," 66 the HBNR defines "breach of security" as any "acquisition of [personal health record] information without the authorization of the individual." 67 The FTC interprets this definition expansively, stating that a "breach of security" occurs when a health app "discloses sensitive health information without users' authorization." 68 Assuming the FTC's interpretation stands, however, the HBNR's "notification" remedy remains weak tea compared to HIPAA's more robust (if sometimes criticized) protection. Fertility app companies' stated policies show sensitivity to privacy concerns. For example, Clue's co-founder wrote that "we do not want to build a business model that relies on sharing our users' attention or personal data with third parties" and that Clue's business model would be based on a paid premium version of its apps. 69 Clue "share[s] a minimal amount of data about our users with advertising networks (but we never share the menstrual or other health data you track in the app)" and allows users to opt out of "any data being shared for ad optimization." 70 Glow offers users the option to "[d]elete [their] 'Key Health Data' from [Clue's] servers[] but keep it on [their] personal device." 71 Some companies' websites have at times declared that their apps are voluntarily HIPAA compliant. 72 Nonetheless, fertility tracking companies have often asserted strong rights to user data. Ovia's terms of use at one time granted the 2022), https://www.verifythis.com/article/news/verify/health-verify/period-tracking-apps-hipaa-privacy-rules-law-fact-check/536-bf44e08c-cc5f-4ee8-997a-c15e0060081a [https://perma.cc/9X66-N5GY] (Pam Dixon of the World Privacy Forum describes claims of HIPAA compliance as a "big red flag" that is a "meaningless phrase" for apps that are not covered entities). The Great Regulatory Dodge 1245 company a royalty-free, perpetual, and irrevocable license to "utilize and exploit" de-identified personal information for scientific research and "external and internal marketing purposes" and to "sell, lease or lend aggregated Personal Information to third parties." 73 Like other entities, fertility app companies often include the same sort of vague, ambiguous, and even self-contradictory language in their privacy policies and terms of use. Glow claimed at one point that "[w]e do not sell or rent your personal data to third parties" and "[w]e do not profit from your personal information and do not share your information with advertisers" while also explaining that "[w]e may share your personal information as necessary . . . to tell you about products and services of interest to you." 74 These companies also have not always abided by their lofty promises. In 2021, Flo Health settled FTC allegations that its app shared health information with third parties (including Facebook and Google analytics, AppsFlyer, and Flurry) after promising to keep such data private and only use it to provide services. 75 Similarly, Glow settled a complaint brought by the California Attorney General alleging violations of various California laws by failing to comply with its privacy policy. 76 Most importantly, FTC privacy policy enforcement is at best a notice-and-choice regulatory regime. There is now a clear consensus among privacy experts and advocates that this approach fails on multiple fronts. 77 Moreover, while we may admire Ovia for voluntarily complying with HIPAA, Glow for offering the key health data deletion feature, and Clue for designing its business model not to rely on selling user data, such promises are unilateral and may be revoked at any time -with notice, of course. 78 Even the FTC's approach to the HBNR 77. See supra note 22 for a sampling of the consensus empirical and normative views. 78. In fact, the FTC has found that companies can at times invoke HIPAA compliance to put consumers at ease in ways that the FTC alleges is deceptive. See Complaint at 14, Better-Help, Inc., FTC Docket No. C-4796 (Mar. 2, 2023). An important exception here may be requires only that app companies obtain user consent before sharing health data -another incarnation of notice and choice. 79 Treating fertility apps as akin to other commercial apps is a scoping dodge. It misassigns new forms of healthcare services to an unsuitable privacy regime and misleads individuals who would expect a more contextually appropriate regime. While health tracking apps may also be constrained by omnibus consumer protection or health-specific state laws, there is no principled reason not to subject them to contextually appropriate health privacy regulation at the federal level. The term "scoping dodge" carries a normative judgment: fertility apps have escaped federal sectoral regulation when, in our view, it should cover them. Fertility app companies inhabit the healthcare context because they absorb and generate data substantively similar to that absorbed and generated within traditional healthcare settings; promote their expert services as the basis for clinical insights and healthcare decisions; and are in an asymmetric relationship with users analogous to that between healthcare provider and patient. As noted, fertility apps collect wide-ranging biological and physiological data as well as health-related behavioral data. 80 At the same time, they tout their sophisticated methods for deriving insights from this data, in a manner that is similar to the practices of traditional healthcare providers, who collect and use information about patients' Clue, which is based in Germany. Thiago, What Is the GDPR and How Does It Affect Me?, CLUE SUPPORT (Nov. 21, 2023, 7:35 AM), https://support.helloclue.com/hc/en-us/arti-cles/360000751643-What-is-the-GDPR-and-how-does-it-affect-me [https://perma.cc/VBC9-TNDA]. Under the GDPR, Clue would likely not be able to simply unilaterally begin selling access to customer data, even if it did provide notice of its proposed plan to change its business model. Under the GDPR, mere notice of a changed policy is not sufficient. Freely given, specific, informed, and unambiguous consent must be given. GDPR art. 7, rec. 32 (detailing that processing personal data is generally prohibited, unless expressly allowed by law or the data subject consents to the processing). 79. The GoodRx complaint heavily emphasizes the company's failure to abide by its privacy promises, though it does include counts based on Section 5 of the FTC Act. See Complaint for Permanent Injunction, Civil Penalties, and Other Relief at 20-26, United States v. GoodRx Holdings, Inc., No. 23-cv-460 (N.D. Cal. Feb. 1, 2023). In the case of BetterHelp, the FTC's proposed order bans the service from sharing health data for advertising purposes (with no consent loophole) and requires the company to pay $7.8 million to consumers whose health data had been shared with advertisers. BetterHelp The Great Regulatory Dodge 1247 physical condition for the purposes of analyzing their health status. 81 Flo boasts of using more than seventy fields of user data to derive "precise" AI-driven period and ovulation predictions. 82 Ovia advertises its algorithm's capacity to provide accurate ovulation and menstrual predictions while offering health coaching. 83 Glow describes itself as a form of "modern care" for fertility. 84 Power asymmetries, based on differential levels of knowledge and expertise, mark physician-patient relationships. These imbalances have long motivated confidentiality obligations, from ancient texts such as the Hippocratic Oath to contemporary standards reflected in the HIPAA Privacy Rule. Fertility app companies stand in a similarly asymmetric relationship with users, who are acutely vulnerable to harm from inappropriate uses and dissemination of fertility-related data and inferences. Fertility data carries enormous personal and cultural significance. Early-stage fertility marks a moment of unique vulnerability. Not only do the vast majority of miscarriages happen during the first trimester, 85 but post-Dobbs v. Jackson Women's Health Organization, 86 this period corresponds to people's (drastically shrinking) window to legally terminate their pregnancies. 87 Inappropriate flows of fertility data can not only produce significant social and cultural stigma but also material risk from limits on employment or insurance opportunities as well as significant legal risk in a post-Dobbs world. Post-Dobbs, the risk of health data being used in some states to prosecute those suspected of terminating a pregnancy must be added to the litany of concerns. 88 Fertility app services are part of the healthcare context. Regulating them like garden-variety commercial apps is unlikely to be contextually appropriate or sufficiently protective. Moreover, fertility app companies and the platforms that host them may be unconstrained by professional healthcare norms. Because early insight into when people may be pregnant is both intimate and commercially valuable, contextually appropriate and effective privacy regulation is crucial. Otherwise, uninformed users will be harmed, while savvy users may decide not to connect fertility tracking records with other health information records or even avoid the apps altogether. Such evasive maneuvers are opportunity costs for societal health as well as for the individuals involved. CI prescribes privacy rules designed to produce appropriate flows of data, taking into consideration stakeholder interests, fundamental ethical and political values, as well as contextual ends and values. The HIPAA Privacy Rule is tailored to the healthcare context: it encourages the free flow of data needed for diagnosis and treatment by ensuring that only parties involved with those (and similarly appropriate) aims have access to health data. Above, we pointed to the reasons why fertility apps should be conceived as contextual actors in healthcare and bound by contextual norms: as the saying goes, "If it looks like a duck, swims like a quick, and quacks like a duck, then it is probably a duck." Although fertility apps may not exactly fit the roles of traditional "covered entities," their data practices affect the interests of users and their purposes and values in similar ways. Details of regulatory design for fertility apps are matters for debate among experts knowledgeable about the healthcare domain. Such analysis might suggest expanding the class of HIPAA-covered entities or devising bespoke privacy rules for health app companies, as was previously done for business associates. The ramifications of these choices are too far-reaching and complex to be left to the uninformed decisions of individual app users. Ultimately, while regulators will benefit from the insights of privacy experts, the experts most critical to this endeavor are those who grasp the data flows enabled by fertility app use and can envision how those data flows affect people, healthcare systems, and societies. HIPAA's scoping dodge affects a wide range of health-related apps, perhaps most notoriously mental health apps. 89 For example, researchers have demonstrated that educational technology vendors (learning platforms, websites, apps, and software) for primary, secondary, and tertiary education, who explicitly claim to provide educational services, follow troubling data practices. 90 The Great Regulatory Dodge 1249 vendors easily dodge the Family Educational Rights and Privacy Act, which is scoped to apply only to entities that receive Department of Education funding. 91 Payment apps, such as Venmo, Square, and Google Pay, are intermediaries to an increasing amount of highly revealing financial activity that paints a detailed picture of consumers' lives: what we earn and what, when, and where we buy. Not surprisingly, financial privacy is the subject of several federal statutes, including the GLBA. Though payment app companies are covered by the GLBA's privacy requirements, they often benefit from an "exception dodge" because contextually inappropriate information flows fall within an affiliated company exception. Digital payment systems facilitate payment between account holders and between consumers and businesses, and allow platforms' users to make in-system purchases. Venmo, launched in 2009, is a widely adopted payment system, handling $242 billion in transactions in 2022. 92 Square facilitates point-of-sale payment services between consumers and businesses, offering tablets and mobile phone plug-ins to facilitate card or mobile payments as well as a range of financial services to small businesses. 93 Google Pay, similar to other digital wallet and online payment platforms, allows users to make credit and debit card payments on Android devices and, with limited functionality, on iOS devices. 94 Merchants can add Google Payment services and link their rewards or loyalty programs, allowing users to store and access tickets, boarding passes, coupons, public transit cards, and even student IDs. 95 These services also collect a great deal of data. Venmo collects transaction data, including payment sender, recipient, and a user- entered description of what the payment is for. 96 Square collects granular data from each transaction, including location, items purchased, purchase price, and credit card information. 97 As an intermediary, Square can assemble detailed longitudinal data on both customers and businesses across multiple Square-facilitated transactions. Square shares data with third parties for a variety of purposes, including advertising. 98 Google Pay collects registration information (e.g., credit card number, bank account number, and taxpayer ID number), information obtained from third parties (including credit bureaus and transacting parties), and transaction information (e.g., transaction date and time, parties, method of payment, and a description of goods purchased). 99 Registration information is associated with users' Google accounts, and Google Pay's privacy policy incorporates "any information listed in the Google Privacy Policy." 100 The GLBA imposes broad but shallow privacy obligations on financial institutions through its Privacy Rule, which bans the disclosure of nonpublic personal information ("NPI") to "nonaffiliated third parties" (entities outside common corporate ownership) without first providing the consumer or customer a privacy notice. 101 A GLBAcovered "financial institution" engages in activities "that are financial in nature or incidental to such financial activities, as determined by Section 4(k) of the Bank Holding Company Act of 1956." 102 Section 4(k)'s definition includes "[l]ending, exchanging, transferring, investing for The Great Regulatory Dodge 1251 others, or safeguarding money or securities." 103 The GLBA directs the relevant agency to interpret "financial activities" in light of the statute's purposes and of changes in the marketplace or in technology for delivering "financial services." 104 This purpose-driven approach means that the GLBA covers not only obvious actors such as banks, securities brokers, insurance underwriters, and finance companies, but also other entities that provide financial services. 105 While the FTC interprets the GLBA's "financial institutions" to be those "significantly engaged" in financial activities, 106 the GLBA's coverage remains quite broad; even universities have been deemed "financial institutions" because they administer federal student loan programs. 107 The GLBA regulates the treatment of consumers' nonpublic personal information, where "consumers" are those who use a financial product or service for personal or household purposes. 108 Nonpublic personal information is information that is not publicly available or used in connection with solicitation or provision of a financial product or service. 109 According to the Consumer Financial Protection Bureau, NPI may include seemingly public personal information (such as name, phone, and address) obtained through cookies or combinations of public information in a nonpublic list. 110 Thus, a financial institution's list of depositors would be considered "nonpublic" because of the connection with the institution. Because "financial institution" is functionally defined (i.e., around activities that are financial in nature, not a predetermined set of entities), there is little question that payment apps are covered by the GLBA's Privacy Rule and handle consumers' NPI. 111 There is no scoping dodge. Instead, problems arise from the rule's exception for affiliated companies. 112 The GLBA Privacy Rule generally prohibits financial institutions from disclosing NPI to "nonaffiliated third parties" (outside common corporate ownership) unless the institution supplies a "clear and conspicuous" privacy notice meeting certain requirements 113 and provides an opportunity to opt out of disclosure to such parties. 114 The institution must provide its privacy policy and notify consumers of their right to opt out, giving them a reasonable opportunity to do so (often thirty days), before sharing. 115 Financial institutions may disclose NPI to nonaffiliated parties without an opt-out opportunity only when the disclosure is necessary to effect, administer, or enforce a transaction (e.g., an audit of credit information or the administration of a rewards program) 116 or other specified, contextually appropriate purposes, 117 reminiscent of the routine disclosures permitted by HIPAA in the healthcare context. The exception dodge arises because, as described above, the GLBA Privacy Rule only regulates NPI flowing to entities outside the corporate umbrella; it does not impose any regulatory requirements onto information flows between financial institutions and "affiliated third parties" under a common ownership umbrella. 118 Today, this exception creates a large swath of unregulated flows of NPI that has potentially profound implications for financial privacy in the shadow of market concentration. 111. Again, "financial institution" is broadly defined -any institution that engages in activities "that are financial in nature or incidental to such financial activities, as determined by Section 4(k) of the Bank Holding Company Act of 1956." 15 U.S.C. § 6809(3)(A) (2021). Financial institutions under that Act include the usual suspects like banks, securities brokers and dealers, finance companies, and mortgage bankers, but the Act also covers nonbank entities that provide financial services like lending, exchanging, transferring, investing, or safeguarding money or securities -even travel agents. See Bank Holding Company Act, 12 U.S.C. § 1841-1852 (2021). See, in particular, 15 U.S.C. § 1843(k)(4)(A)-(E) (2021). Financial services also include the "evaluation or brokerage of information that the [financial] institution collects in connection with a request or an application from a consumer for a financial product or service." FDIC, supra note 102. See Decision and Order at 5, PayPal, Inc., FTC Docket No. C-4651 (May 23, 2018) (consent order) (permanently enjoining PayPal to comply with the GLBA, thus demonstrating that mobile payment platforms are covered under the scope of the GLBA's definition of a financial institution). When enacted in 1999, GLBA primarily contemplated the activities of large traditional financial institutions. 119 The bill repealed key sections of the Glass-Steagall Act that had prohibited financial holding companies from acting as a combination of investment bank, commercial bank, and insurance company, and erected conflict-of-interest barriers against an "officer, director, or employee" of a securities firm also serving as an "officer, director, or employee" of a member bank. 120 These changes encouraged the consolidation of firms across core financial services such as investment banking, commercial banking, and insurance. 121 Whatever one thinks of this outcome, the GLBA's enactors did not contemplate a future in which the GLBA would govern digital companies for whom producing financial transaction data and linking it with other data sources is a primary focus. The GLBA Privacy Rule's affiliated entity exception now exempts whole swathes of financial information flowing beyond the financial context. Companies benefit from an exception dodge when they can change market configuration to "shift" previously regulated data sharing activity into an exception. While the sharing may nominally fit within the exception, we call "Dodge!" when social and technological evolution has distorted an exception's coverage in problematic ways. When financial data sharing patterns shift so that major pathways fall within an exception, regulatory requirements become vestigial, appended to an exception that has swallowed the rule. Such an exception may also incentivize business strategies that exacerbate the problem. The GLBA's exception for disclosures to affiliated third parties makes sense in the traditional banking sector that was the core concern of the law. It frees banks from having to provide notices each time financial data is transferred between affiliated corporations that provide distinct banking services. In the digital economy, however, this exception encompasses potentially inappropriate data flows extending beyond the financial context. Digital financial services exist within an ecosystem of mega-mergers and concentrated service provision. Google Pay is part of Google, LLC, which is in turn part of Alphabet Inc., whose many subsidiaries include Firebase (for analytics), DoubleClick (for advertising), Waymo, Verily Life Sciences, and Google DeepMind. 122 Google Pay may share financial information with any of these entities, who may use it for "everyday business purposes," 123 thus linking users' payment information to their other activities throughout the web and mobile ecosystems. Users' purchasing information is especially valuable to companies like Google that derive their revenue from advertising, providing insight into which advertising strategies result in purchases. Other digital financial services also trend toward consolidation across diverse services. PayPal, for instance, owns (among others) Venmo, Xoom (which facilitates bank transfers), Honey (which gathers data on coupons), and Braintree (a data sharing toolkit that does analytics and shares payment data with third parties to improve advertising). 124 Square has several affiliates and services, including Weebly (the e-commerce version of Square), Square Financial Services (a banking subsidiary), Afterpay (an installment-payment platform), and Square Capital (small business loans and other financial services). 125 Square also offers its own analytics engine for itself and for businesses using the platform. 126 In a less concentrated economy, entities performing such disparate services would be separate, and data sharing between them would be subject to GLBA's notice and opt-out rights. The "regulation-free zone" created by the GLBA's exception for affiliated third parties encourages consolidation of disparate data-producing activities under a single corporate umbrella and allows companies to freely combine financial information with other information. Financial data generated via Google Pay, for example, may be freely combined with search history data, location data, or data generated by any other Alphabet service. This undercuts the GLBA's power to impose privacy standards for digital financial services. Even if the GLBA's affiliate exception is not a primary driver of consolidation in the technology sector, it reinforces that tendency and exacerbates its privacy-eroding effects. 127 The GLBA's Privacy Rule applies in principle to applications such as Venmo, Square, and Google Pay. But in light of the market concentration, the sustained merger activity, and high degree of back-end integration in the digital economy, one is hard pressed to identify data flows that actually trigger the Rule's requirements. As a result, consumers are constructively deprived of their (already relatively meager) GLBA privacy rights for digital financial services. Consumers, researchers, and policymakers are also deprived of meaningful information about how consumer financial data is flowing and being used in the digital economy. Unlike HIPAA's scoping dodge problem, the GLBA's exception dodge issue is not widely recognized, in part because the GLBA's notice and opt-out requirements are weak tea. Our analysis is not a defense of the GLBA's paltry requirements, however, but a lesson about sectoral privacy regulation design. While the GLBA successfully avoids a scoping dodge because its scope is keyed to financial activity rather than traditional financial institutions, its affiliate exception opens a yawning gap in coverage. Affiliate data flow exceptions are common in settings beyond finance. But corporate affiliation is no longer -if it ever was -a proxy 126. Square Analytics, SQUARE, https://squareup.com/us/en/point-of-sale/features/ dashboard/analytics [https://perma.cc/Y799-W5EA]. 127. This replicates on a smaller, inter-firm scale the argument others have made about the GDPR. Namely, that the law not only regulates privacy and data processing, but also sets compliance standards that eases inter-bloc commerce among European Union member states (and raises regulatory barriers to international commerce with non-bloc states). Paul M. Schwartz, Global Data Privacy: The EU Way, 94 N.Y.U. L. REV. 771, 810 (2019). for common social context. Affiliate exceptions advantage large conglomerate entities, encourage market concentration, and magnify the competitive advantage large companies already draw from data aggregation. While data's flexibility increases the commercial value of crosscontext aggregation, linking data across contexts and using it for divergent purposes raises significant privacy concerns. Consider the recent revelation of Amazon Ring's partnerships with over four hundred local law enforcement agencies. 128 Exempting such affiliations -and the resulting data flows -from scrutiny would shield flows that raise serious privacy concerns. Problematic exception dodging is not limited to "affiliate" exceptions alone. Exceptions become dodges whenever they unexpectedly allow cross-context data sharing without appropriate normative constraints. For instance, the commonplace "public" data exception may allow commercialization of nominally publicly available data -such as court records and land registries -without privacy obligations, despite evidence that people often base their privacy expectations on the context in which data was collected. 129 If sectoral privacy laws facilitate "dodges," perhaps we should prefer omnibus privacy regulation. But unless they provide standards for context-sensitive tailoring by judges and agencies, omnibus laws will amount to one-size-fits-all regimes, permitting contextually inappropriate information flows, erecting barriers to contextually appropriate flows, or both. In response to the contextual needs of healthcare, for example, HIPAA enshrines a complex set of transmission principles varying with the particular actors, purposes, and information involved. It permits unauthorized disclosures for contextually routine purposes such as treatment, payment, and healthcare operations (with exceptions for psychotherapy notes) and mandates disclosures for Department of Health & Human Services compliance monitoring. 130 HIPAA allows some disclosures, such as listing minimal information in a facility directory and providing relevant information to family caregivers, under informal processes that rely heavily on professional judgment. 131 With narrow exceptions, the Rule forbids the sale and use of health information for advertising unless a detailed written "authorization" process is followed, and covered entities may not condition treatment or benefits on such authorization. 132 In these and other ways, the HIPAA Privacy Rule raises and lowers barriers to information flow depending on contextual norms. Now consider two well-known omnibus privacy laws: California's CCPA (as modified by the Consumer Privacy Rights Act) and the EU's GDPR. Each imposes various requirements, many focusing on notice and transparency, relating to the collection, use, and disclosure of personal information. The CCPA requires that a business's collection, use, and disclosure of personal information be reasonably necessary and proportionate to achieve the purposes for which it was collected or processed, or for another compatible disclosed purpose. 133 It does not, however, impose many restrictions on those disclosed purposes. Consumers' power to directly affect a business's use and disclosure of their information comes primarily from Section 1798.120's right to opt out of sale of personal information for valuable consideration and of "sharing" for cross-context behavioral advertising 134 and Section 1798.121's right to limit the use and disclosure of "sensitive" information collected or processed for the purpose of inferring characteristics about a consumer. 135 Both of these provisions default to allowing companies to do what they wish unless consumers proactively assert their rights, in contrast with HIPAA's default prohibition of the sale of health information or its use in (most) marketing unless explicitly authorized. 136 The CCPA is thus watered down in comparison to HIPAA's context-specific provisions. The GDPR's default is different. Under the GDPR, personal data may be processed only under limited circumstances, most notably with purpose-limited consent or when "necessary" to the "legitimate interests pursued by the controller or by a third party, except where . . . overridden by the interests or fundamental rights and freedoms of the data subject." 137 "Legitimate interest" and other alternative justifications are not available for "special categories" of data, including health data, where the default is to require "explicit consent" that is "freely given" and services cannot ordinarily be denied for refusal to consent. 138 The GDPR's default for health data is thus similar to HIPAA's authorization requirement for many uses and disclosures. But HIPAA does not require consent for routine medical information flows required for treatment. 139 In short, a one-size-fits-all explicit consent requirement would be inappropriate in the medical context. In practice, neither jurisdiction actually applies omnibus rules to health data. The CCPA exempts HIPAA-covered entities, as well as entities covered by California's Confidentiality of Medical Information Act ("CMIA"), 140 from its requirements. 141 Unlike HIPAA, California's CMIA was recently amended to cover many health apps 142 and was a primary basis for the California Attorney General's complaint against Glow. 143 The GDPR exempts health data disclosures (similar to those allowed by HIPAA) from its blanket requirement of express consent for "special categories." 144 Like HIPAA, the GDPR thereby avoids erecting barriers to standard and appropriate flows of healthcare The Great Regulatory Dodge 1259 information. The GDPR's health data exemption does not cover directto-consumer health apps, however; they remain subject to the "special categories" explicit consent standard. If the main concern about health app data is disclosure for marketing, this may be roughly equivalent to HIPAA's consent requirement for marketing uses. Nonetheless, it is unlikely that the GDPR's exceptions manage to anticipate every situation in which explicit consent is an inappropriately high barrier to flows of "special category" data. In sum, neither California nor the EU actually applies an omnibus rule to health data. Both, albeit differently, define sectoral rules. And both succeed in avoiding the "scoping dodge" that plagues HIPAA: California by bringing health apps (at least mostly) under its state medical privacy law and the EU by setting a stringent default rule for "sensitive" data and creating a sectoral exception that permits some contextually appropriate flows. The health data case demonstrates both the fallacy of the one-size-fits-all omnibus dream and the fact that scoping dodges are not inevitable in sectoral privacy law. Our payment app analysis also illuminates the omnibus privacy law question. The CCPA and GDPR illustrate dramatically different possibilities for omnibus regulation. The CCPA imposes relatively weak limitations on information flow and use, giving consumers only a limited right to opt out of information sales and sharing for cross-contextual behavioral advertising and of certain uses of "sensitive" data. 145 The GDPR, on the other hand, requires legal justification for all data processing, though consent is nearly always an acceptable basis. 146 The CCPA and GDPR are potentially both more and less restrictive than the GLBA. The CCPA does not cover payment apps (it exempts entities covered by the GLBA), 147 but if it did, the CCPA's opt-out regime would probably cover data sharing with affiliates -though it would apply only to "selling" or "sharing" for cross-contextual behavioral advertising. 148 Whether this compromise would improve on the GLBA is a question for contextual experts. And because financial information is not a "special category" under the GDPR, legal bases for sharing it (with affiliates or non-affiliates) include not only consent 149 but also "necessities" such as "legitimate interests pursued by the controller or by a third party, except where . . . overridden by the interests or fundamental rights and freedoms of the data subject." 150 Thus, the default rule varies according to the intended use, and it is not always possible for data subjects to opt out of sharing. Whether this is good is again a contextual question. Omnibus laws such as the CCPA and GDPR generally impose significant requirements for notice, transparency, correction, deletion, obtaining valid consent, and the like. Complying with such duties may be overly burdensome in some circumstances. Both statutes limit their scope in response. The CCPA covers only "businesses" that handle large amounts of money or data. 151 The GDPR is scoped broadly, exempting "personal or household activity," leaving the question of whether there are other contexts in which privacy is more appropriately governed by informal norms and private arrangements than by potentially onerous legal requirements. 152 Omnibus data privacy laws can also themselves fall prey to regulatory dodges: the CCPA applies only to "businesses" of a certain size, 153 creating the potential for a scoping dodge for smaller but privacy-invasive companies. Omnibus privacy laws also have to cover so much (and invite lobbying from so many sectors), that they may end up with watered-down, lowest-common-denominator provisions. Omnibus laws can also erect unnecessary and potentially costly barriers to contextually appropriate information flows and uses. In sum, omnibus approaches can mask or paper over regulatory design questions that are critical to contextual integrity. A broad-based law need not be one-size-fits-all. Omnibus laws can accommodate contextual tailoring, either by including contextually specific derogations (as the GDPR does for healthcare) or by imposing flexible standards. The GDPR's legitimate interest basis is a step in this direction, but its emphasis on individual, rather than contextual or social, balancing is insufficient. Moreover, extant omnibus laws are uniformly overly dependent on consent, which is an important transmission principle, but often ineffective and certainly not universally appropriate. 154 A contextual-integrity-based omnibus law could provide a universally applicable standard while allowing agencies to develop sectoral regulations that might even incorporate appropriately vetted safe harbors. Sectoral regulation would concretize the CI standard for common situations in important contexts. Outside of such explicitly regulated areas and in situations of evolving or overlapping contexts, judges could apply the CI standard in common law fashion, considering evidence regarding contextual norms, values, and goals, just as tort law takes factors such as custom into account. Many types of evidence would be relevant, such as informal norms, industry practice, surveys of citizens and consumers, and professional ethics guidelines. Of course, standards introduce uncertainty that can be difficult for regulated entities to manage. But they also provide opportunities to develop more substantive, contextually sensitive bodies of privacy law. Sectoral regulations could standardize outcomes for repeat players in important contexts, while leaving room for courts to recognize and regulate new types of information flows within existing contexts under the broad standard. Courts could be expected to defer to informal norms and local governance in many instances, allowing for context-specific norm development and flexibility to technological change. In sum, an omnibus law based on a contextual standard can incorporate the best of both worlds. We use the terms "information" and "data" interchangeably. NISSENBAUM, supra note 25, at 140-47. S. Code). 12. CAL. CIV. CODE § § 1798.100-.199 (West 2023). 42. Individuals, OVIA HEALTH, https://www.oviahealth.com/apps [https://perma.cc/8ESE-BHK7]; GLOW, https://glowing.com [https://perma.cc/U78Y-PYEM]. [https://perma.cc/TJ4A-CHLG]; see also supra note 55 and accompanying text. 59. Pub. L. No. 111-5, 123 Stat. 115 (2009).

IV. FERTILITY APPS AND THE SCOPING DODGE

[https://perma.cc/R8P6-JMBX] (discussing the impact of the FTC's new enforcement strategies).

C. The FTC's Health Data Breach Notification Rule

The American Recovery and Reinvestment Act of 2009 59 ("ARRA") "recognize [d]

The Great Regulatory Dodge 1249 vendors easily dodge the Family Educational Rights and Privacy Act, which is scoped to apply only to entities that receive Department of Education funding. 91

D. Lessons from the Payment App Case Study

VI. SECTORAL AND OMNIBUS REGULATION: PITFALLS AND WAYS FORWARD

We use the terms "information" and "data" interchangeably.

NISSENBAUM, supra note 25, at 140-47.

S. Code). 12. CAL. CIV. CODE § § 1798.100-.199 (West 2023).

42. Individuals, OVIA HEALTH, https://www.oviahealth.com/apps [https://perma.cc/8ESE-BHK7]; GLOW, https://glowing.com [https://perma.cc/U78Y-PYEM].

[https://perma.cc/TJ4A-CHLG]; see also supra note 55 and accompanying text. 59. Pub. L. No. 111-5, 123 Stat. 115 (2009).