Digital Commons Network^™

National Security And Federalizing Data Privacy Infrastructure For Ai Governance, Margaret Hu, Eliott Behar, Davi Ottenheimer

Fordham Law Review

This Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure …

Fairness And Fair Use In Generative Ai, Matthew Sag

Fordham Law Review

Although we are still a long way from the science fiction version of “artificial general intelligence” that thinks, feels, and refuses to “open the pod bay doors,” recent advances in machine learning and artificial intelligence (AI) have captured the public’s imagination and lawmakers’ interest. We now have large language models (LLMs) that can pass the bar exam, carry on (what passes for) a conversation about almost any topic, create new music, and create new visual art. These artifacts are often indistinguishable from their human-authored counterparts and yet can be produced at a speed and scale surpassing human ability.

“Generative AI” …

Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman

Fordham Law Review

Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with …

Serious Notice: A Celebration, Discussion, And Recognition Of Joel Reidenberg’S Work On Privacy Notices And Disclosures, Tal Z. Zarsky

Fordham Law Review

This Essay pays tribute to Professor Joel Reidenberg’s rich academic career and, specifically, to his contributions to the study of privacy policies. In doing so, this Essay takes a close look at privacy policies and possible ways to effectively intermediate their content through various labeling schemes. While severely flawed, privacy policies are here to stay. Therefore, an in-depth analysis of ways to enhance their efficiency is merited. This Essay thus examines key strategies for privacy-related intermediation, obstacles, and problems arising in the process, as well as possible solutions. The analysis weaves together theoretical and empirical privacy law scholarship (much of …

The Glocal Net: Standing On Joel Reidenberg’S Shoulders, Michael Birnhack

Fordham Law Review

Information technology and digital networks are global, and information can easily cross borders. Laws, however, are territorial, local, and specific. This is the meeting of the global and the local. Imposing local laws on global technology can result in a conflict, but it may give birth to a new condition, the “glocal net”: the fusion of the global and the local. Under the condition of the glocal net, as a matter of practice, people experience the internet differently in different places around the globe. As an ideal, the glocal net would strive to enable both the global and the local …

Copyright’S Techno-Pessimist Creep, Xiyin Tang

Fordham Law Review

Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation—and may serve as precedent for …

The Risk Of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents And The Notification Requirement, Rebecca J. Spendley

Fordham Law Review

The American Bar Association (ABA) created the Model Rules of Professional Conduct to provide guidance to lawyers, courts, and the entire legal profession regarding what a lawyer’s ethical duties entail. Model Rule 4.4(b) requires a lawyer to notify opposing counsel once the receiving lawyer knows, or reasonably should know, that the documents received were inadvertently sent. The ABA, however, explicitly left documents disclosed intentionally and without authorization beyond the scope of the rules, thus leaving lawyers who receive these documents with little guidance. Courts have taken varying approaches to handling documents of this type: some analogize unauthorized disclosures to inadvertent …

Measuring The Impact Of Sec Enforcement Decisions, Stephen J. Choi

Fordham Law Review

This Article examines several metrics of Securities and Exchange Commission (SEC) decision-making that may be updated on a regular basis using publicly available data to give a picture of how SEC decision-making changes. This Article focuses on SEC actions against public companies and subsidiaries of public companies, using data from 2005 to 2018. The metrics include: the number of SEC actions per year and per month, the ratio of SEC actions to securities class actions by year, the mean abnormal return from an event study of the first public announcement of the problem that led to the eventual SEC enforcement …

Pornographic Deepfakes: The Case For Federal Criminalization Of Revenge Porn’S Next Tragic Act, Rebecca A. Delfino

Fordham Law Review

This could happen to you. Like millions of people worldwide, you have uploaded digital photographs of yourself to the internet through social media platforms. Your pictures aren’t sexually explicit or revealing—they depict your daily life, spending time with friends or taking “selfies” on vacation. But then someone decides they don’t like you. Using an app available on any smartphone, this antagonist clips digital images of your face from your innocuous pictures and pastes them seamlessly onto the body of a person engaged in sexually explicit acts. Without your knowledge or consent, you become the “star” of a realistic, pornographic “deepfake.” …

The Due Process And Other Constitutional Rights Of Foreign Nations, Ingrid Wuerth

Fordham Law Review

The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional …

Artificial Intelligence, Finance, And The Law, Tom C.W. Lin

Fordham Law Review

Artificial intelligence is an existential component of modern finance. The progress and promise realized and presented by artificial intelligence in finance has been thus far remarkable. It has made finance cheaper, faster, larger, more accessible, more profitable, and more efficient in many ways. Yet for all the significant progress and promise made possible by financial artificial intelligence, it also presents serious risks and limitations. This Article offers a study of those risks and limitations—the ways artificial intelligence and misunderstandings of it can harm and hinder law, finance, and society. It provides a broad examination of inherent and structural risks and …

Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Fordham Law Review

This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …

Prosecuting Dark Net Drug Marketplace Operators Under The Federal Crack House Statute, Thomas J. Nugent

Fordham Law Review

Over 70,000 Americans died as the result of a drug overdose in 2017, a record year following a record year. Amidst this crisis, the popularity of drug marketplaces on what has been called the “dark net” has exploded. Illicit substances are sold freely on such marketplaces, and the anonymity these marketplaces provide has proved troublesome for law enforcement. Law enforcement has responded by taking down several of these marketplaces and prosecuting their creators, such as Ross Ulbricht of the former Silk Road. Prosecutors have typically leveled conspiracy charges against the operators of these marketplaces—in Ulbricht’s case, alleging a single drug …

When Law Frees Us To Speak, Danielle Keats Citron, Jonathon W. Penney

Fordham Law Review

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Foreword: Rise Of The Machines: Artificial Intelligence, Robotics, And The Reprogramming Of Law, Deborah W. Denno, Ryan Surujnath

Fordham Law Review

This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center.

Cyber Babel: Finding The Lingua Franca In Cybersecurity Regulation, William Pierotti

Fordham Law Review

Cybersecurity regulations have proliferated over the past few years as the significance of the threat has drawn more attention. With breaches making headlines, the public and their representatives are imposing requirements on those that hold sensitive data with renewed vigor. As high-value targets that hold large amounts of sensitive data, financial institutions are among the most heavily regulated. Regulations are necessary. However, regulations also come with costs that impact both large and small companies, their customers, and local, national, and international economies. As the regulations have proliferated so have those costs. The regulations will inevitably and justifiably diverge where different …

Decoding The "Sphinx-Like Silence": State Residency, Petition Circulation, And The First Amendment, Ryan A. Partelow

Fordham Law Review

State governments are the primary regulators of elections and ballot access in the United States. State statutes determine who is eligible to be on the ballot in each particular state, as well as who may assist these individuals by gathering petition signatures. Candidates for political office, initiative proponents, and their supporters have challenged some of these restrictions as unconstitutional burdens on political speech. The U.S. Supreme Court has had great difficulty in articulating a coherent standard of review in this area of the law, which shows that the line between a state’s reasonable regulation of the election process and an …

Reevaluating The Computer Fraud And Abuse Act: Amending The Statute To Explicitly Address The Cloud, Amanda B. Gottlieb

Fordham Law Review

Under the current interpretations of authorization, instances where an individual harmlessly accesses the cloud data of another user could be classified as hacking and a violation of this federal statute. As such, this Note demonstrates that all of the current interpretations of the CFAA are too broad because they could result in this nonsensical outcome. This Note accordingly proposes an amendment to the CFAA specifically addressing user access to data on the cloud. Such an amendment would eliminate the unusual result of innocuous cloud-computing users being deemed hackers under federal law.

The Internet As Marketplace Of Madness— And A Terrorist’S Best Friend, Thane Rosenbaum

Fordham Law Review

The panel I was assigned to, for this distinguished gathering of scholars at Fordham Law School, where I had previously been a professor for twentythree years, was given the name, “Caution Against Overreaching.” Overreaching and the caution it occasions, in this case, refer to the First Amendment, a uniquely American absolutist, legalistic obsession. For many who fixate on such matters, the government must never be allowed to trample upon the unfettered free speech rights guaranteed under America’s first, and most favorite, Amendment.

Social Media Accountability For Terrorist Propaganda, Alexander Tsesis

Fordham Law Review

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints …

Terror On Your Timeline: Criminalizing Terrorist Incitement On Social Media Through Doctrinal Shift, Zachary Leibowitz

Fordham Law Review

The United States faces a barrage of threats from terrorist organizations on a daily basis. The government takes some steps to prevent these threats from coming to fruition, but not much is being done proactively. Any person can log into a social media account to preach hate and incite violence against the United States and its citizenry, and sometimes these words result in action. When speakers are not held accountable, they can continue to incite the masses to violent action across the United States. This Note proposes a new incitement doctrine to prevent these speakers from being able to spread …

Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen

Fordham Law Review

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two …

The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, Danielle Keats Citron, Benjamin Wittes

Fordham Law Review

Section 230 is overdue for a rethinking. If courts do not construe the scope of federal immunity to avoid injustice, we argue, Congress should amend the law. This is not to discount the important role that the immunity provision has played over the past twenty years. Far from it. Section 230 immunity has enabled innovation and expression beyond the imagination of the operators of early bulletin boards and computer service providers the provision was designed to protect. But its overbroad interpretation has left victims of online abuse with no leverage against site operators whose business models facilitate abuse. This state …

Algorithmic Jim Crow, Margaret Hu

Fordham Law Review

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan

Fordham Law Review

Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.

The Internet Of Things: Building Trust And Maximizing Benefits Through Consumer Control, Julie Brill

Fordham Law Review

The Internet of Things is one of the fastest growing facets of a world that is becoming more data intensive. Connecting cars, appliances, and even clothing to the internet promises to deliver convenience, safety, and, through analysis of the torrent of additional data generated, potential solutions to some of our most intractable problems. But turning on this data flood also creates privacy and security risks for consumers, challenging us to consider how to apply basic privacy principles to the Internet of Things. A wide range of stakeholders—technologists, lawyers, industry leaders, and others—has a role to play in meeting this challenge.

Protecting The Profession Or The Public? Rethinking Unauthorized-Practice Enforcement, Deborah L. Rhode, Lucy Buford Ricca

Fordham Law Review

No abstract provided.

Anyone Can “Think Like A Lawyer”: How The Lawyers’ Monopoly On Legal Understanding Undermines Democracy And The Rule Of Law In The United States, Bridgette Dunlap

Fordham Law Review

No abstract provided.