Gary Hsuanyu Liu (Washington University in St. Louis – School of Law) has posted Constitutional Loyalty Beyond State Action: Murthy, Moody, and the Crisis of Algorithmic Domination (University of Pittsburgh Journal of Health Law and Policy, forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s 2024 decisions in Murthy v. Missouri and Moody v. NetChoice produced a constitutional trap for American data governance. Murthy dismissed on standing grounds a challenge to federal coordination with platforms, leaving government influence over citizens’ information environment effectively beyond judicial review. Moody characterized algorithmic curation as protected editorial discretion, functionally immunizing platforms from democratic oversight.
Nowhere are the stakes higher than in health data. Genomic sequences, mental health records, and reproductive information circulate outside HIPAA’s scope, traded on consent rituals that no user can meaningfully perform. The Article traces the predicament to Sorrell v. IMS Health, which elevated commercial data transactions to protected speech and disabled their regulation. Neither notice-and-consent nor the state action doctrine can repair the damage: both presuppose transactional authorization where genuine consent is structurally absent.
Drawing on fiduciary political theory and republican non-domination, the Article argues that the state owes citizens a duty of loyalty over their constitutive interests. In Hohfeldian terms, that duty creates immunities barring the commodification of constitutive health data, whatever terms of service purport to authorize. Threshold deontology specifies when those protections may yield: pandemics, not profits.
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