Law Commons^™

Stay Out Of My Head: Neurodata, Privacy, And The First Amendment, Wayne Unger

Washington and Lee Law Review

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information …

How The Blockchain Undermined Digital Ownership, Aaron Perzanowski

Washington and Lee Law Review

The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …

Keynote Address, Sultan Meghji

Washington and Lee Law Review

Keynote address presented virtually at the Washington and Lee Law Review's 54th Annual Lara D. Gass Symposium: The Future of E-Commerce: Is It on a Blockchain? on Friday, March 17, 2023 in Lexington, Virginia.

Digital Property Cycles, Joshua Fairfield

Washington and Lee Law Review

The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …

Mitigating The Legal Challenges Associated With Blockchain Smart Contracts: The Potential Of Hybrid On-Chain/Off-Chain Contracts, Niloufer Selvadurai

Washington and Lee Law Review

Tantamount with the increasing application of blockchain technologies around the world, the use of blockchain-based smart contracts has rapidly risen. In a “smart contract,” computer protocols automatically facilitate, verify, and enforce arrangements made between parties on a blockchain. Such smart contracts offer a variety of commercial benefits, notably immutability and increased efficiency facilitated by removing the need for a trusted intermediary. However, as discussed in recent legal scholarship, it is difficult for smart contracts to uphold certain fundamental principles of contract law. Translating concepts of individual intention and responsibility into the decentralized space of blockchain is problematic. Aggregating such individual …

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Washington and Lee Law Review

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

The Internet, Personal Jurisdiction, And Daos, Matthew R. Mcguire

Washington and Lee Law Review

Global connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.

Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial …

Risk Assessment And Immigration Court, Richard Frankel

Washington and Lee Law Review

Risk assessment and algorithmic tools have become increasingly popular in recent years, particularly with respect to detention and incarceration decisions. The emergence of big data and the increased sophistication of algorithmic design hold the promise of more accurately predicting whether an individual is dangerous or a flight risk, overcoming human bias in decision-making, and reducing detention without compromising public safety. But these tools also carry the potential to exacerbate racial disparities in incarceration, create a false veneer of objective scientific accuracy, and spawn opaque decision-making by “black box” computer programs.

While scholars have focused much attention on how judges in …

The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict

Washington and Lee Law Review

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing …

The New State Of Surveillance: Societies Of Subjugation, Khaled Ali Beydoun

Washington and Lee Law Review

Foundational surveillance studies theory has largely been shaped in line with the experiences of white subjects in western capitalist societies. Formative scholars, most notably Michel Foucault and Gilles Deleuze, theorized that the advancement of surveillance technology tempers the State’s reliance on mass discipline and corporal punishment. Legal scholarship examining modern surveillance perpetuates this view, and popular interventions, such as the blockbuster docudrama The Social Dilemma and Shoshana Zuboff’s bestseller The Age of Surveillance Capitalism, mainstream the myth of colorblind surveillance. However, the experiences of nonwhite subjects of surveillance—pushed to or beyond the margins of these formative discourses—reflect otherwise. …

Comment: The Necessary Evolution Of State Data Breach Notification Laws: Keeping Pace With New Cyber Threats, Quantum Decryption, And The Rapid Expansion Of Technology, Beth Burgin Waller, Elaine Mccafferty

Washington and Lee Law Review

The legal framework that was built almost two decades ago now struggles to keep pace with the rapid expansion of technology, including quantum computing and artificial intelligence, and an ever-evolving cyber threat landscape. In 2002, California passed the first data breach notification law, with all fifty states following suit to require notice of unauthorized access to and acquisition of an individual’s personal information.1 These data breach notification laws, originally designed to capture one-off unauthorized views of data in a computerized database, were not built to address PowerShell scripts by cyber terrorists run across thousands of servers, leaving automated accessed data …

The Golem In The Machine: Ferpa, Dirty Data, And Digital Distortion In The Education Record, Najarian R. Peters

Washington and Lee Law Review

Like its counterpart in the criminal justice system, dirty data—data that is inaccurate, incomplete, or misleading—in K-12 education records creates and catalyzes catastrophic life events. The presence of this data in any record suggests a lack of data integrity. The systemic problem of dirty data in education records means the data stewards of those records have failed to meet the data integrity requirements embedded in the Family Educational Rights and Privacy Act (FERPA). FERPA was designed to protect students and their education records from the negative impact of erroneous information rendered from the “private scribblings” of educators. The legislative history …

Data Breach Notification Laws And The Quantum Decryption Problem, Phillip Harmon

Washington and Lee Law Review

In the United States, state data breach notification laws protect citizens by forcing businesses to notify those citizens when their personal information has been compromised. These laws almost universally include an exception for encrypted personal data. Modern encryption methods make encrypted data largely useless, and the notification laws aim to encourage good encryption practices.

This Note challenges the wisdom of laws that place blind faith in the continued infallibility of encryption. For decades, Shor’s algorithm has promised polynomial-time factoring once a sufficiently powerful quantum computer can be built. Competing laboratories around the world steadily continue to march toward this end. …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Unifying Antitrust Enforcement For The Digital Age, John O. Mcginnis, Linda Sun

Washington and Lee Law Review

As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government’s response to …

The Digital Samaritans, Eldar Haber

Washington and Lee Law Review

Bystanderism is becoming largely digital. If being subjected to perilous situations was once reserved almost solely for the physical world, individuals now might witness those in peril digitally from afar via online livestreams. New technological developments in the field of artificial intelligence (AI) might also expand bystanderism to new fields, whereby machines—not just humans—are gradually positioned to better compute their surroundings, thus potentially being capable of reaching a high statistical probability that a perilous situation is currently taking place in their vicinity. This current and future expansion of bystanderism into the digital world forms a rather new type of digital …

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

Reinvesting In Rico With Cryptocurrencies: Using Cryptocurrency Networks To Prove Rico’S Enterprise Requirement, Andrew Robert Klimek

Washington and Lee Law Review

This Note received the 2019 Roy L. Steinheimer Law Review Award.

This Note argues that the Racketeer Influenced and Corrupt Organizations Act (RICO) may be suited to cryptocurrency prosecutions. RICO subsection 1962(a) addresses the infiltration of an enterprise by investing proceeds from racketeering activities and this Note contends that a cryptocurrency network could serve as the “enterprise” required by the statute. Instead of having to investigate and prove the relationships in an underlying criminal enterprise, proponents of a RICO case against crypto-criminals could rely on well-documented and publicly available information about the cryptocurrency network to prove the enterprise and the …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Text Messages Are Property: Why You Don’T Own Your Text Messages, But It’D Be A Lot Cooler If You Did, Spence M. Howden

Washington and Lee Law Review

This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.

Artificial Intelligence And Patent Ownership, W. Michael Schuster

Washington and Lee Law Review

Invention by artificial intelligence (AI) is the future of innovation. Unfortunately, as discovered through Freedom of Information Act requests, the U.S. patent regime has yet to determine how it will address patents for inventions created solely by AI (AI patents). This Article fills that void by presenting the first comprehensive analysis on the allocation of patent rights arising from invention by AI. To this end, this Article employs Coase Theorem and its corollaries to determine who should be allowed to secure these patents to maximize economic efficiency. The study concludes that letting firms using AI to create new technologies (as …

Notice And Takedown In The Domain Name System: Icann’S Ambivalent Drift Into Online Content Regulation, Annemarie Bridy

Washington and Lee Law Review

No abstract provided.

Securities Regulation In Virtual Space, Eric C. Chaffee

Washington and Lee Law Review

No abstract provided.

You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski

Washington and Lee Law Review

No abstract provided.

Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy

Washington and Lee Law Review

The Internet of Things (IOT) has been described by the American Bar Association as “one of the fastest emerging,” potentially most “transformative and disruptive technological developments” in recent years. The security risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2’s applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC’s stated goals …

Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin

Washington and Lee Law Review

No abstract provided.

Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield

Washington and Lee Law Review

No abstract provided.

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Ownership Of Human Tissue: A Proposal For Federal Recognition Of Human Research Participants' Property Rights In Their Biological Material, Donna M. Gitter

Washington and Lee Law Review

No abstract provided.