Law Commons^™

Online Surveillance: Remembering The Lessons Of The Wiretap Act, Susan Freiwald

Susan Freiwald

This Article explores those features of electronic surveillance that have made it challenging to regulate effectively. In balancing interests, lawmakers must create a workable law for an exceedingly complex topic, rein in law enforcement agents without crippling them, and draw a line between prohibited and permitted conduct despite society's ambivalence about surveillance. This Article demonstrates that lawmakers met those challenges when they regulated traditional wiretapping, but they have failed to meet them in the online context. It argues that the law should extend the significant restrictions on wiretapping to online surveillance, just as judges did in the case of video …

Comparative Institutional Analysis In Cyberspace: The Case Of Intermediary Liability For Defamation, Susan Freiwald

Susan Freiwald

Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative …