Law Commons^™

President Obama And The Changing Cyber Paradigm, Eric Talbot Jensen

Faculty Scholarship

Among the most important issues for American National Security is the national response to the growing threat from cyber activities. This threat is both ubiquitous and potentially catastrophic as recently demonstrated by both the recent decision by the UK to prioritize cyber capabilities over putting in service an air-capable aircraft carrier and the targeted effectiveness of the STUXNET worm. The evolving cyber paradigm will force the United States to reevaluate the way in which it thinks of both national security and the concept of armed conflict. To combat this threat, President Obama must refocus America’s attention, by both reallocating the …

Google’S China Problem: A Case Study On Trade, Technology And Human Rights Under The Gats, Henry S. Gao

Research Collection Yong Pung How School Of Law

Trade and human rights have long had a troubled relationship. The advent of new technologies such as internet further complicates the relationship. This article reviews the relationship between trade, technology and human rights in light of the recent dispute between Google and China from both theoretical and practical perspectives. Starting with an overview of the internet censorship regime in China, the article goes on to assess the legal merits of a WTO challenge in this case. First, the article discusses which service sector or subsectors might be at issue. Second, the article analyzes whether and to what extent China has …

Ombuds In Cloud Of Exabytes--Understanding The Ombuds' Digital Trail, Craig Mousin

Mission and Ministry Publications

This article examines Ombuds Standards of Practice as Ombuds increasingly rely upon electronic communication. It first explores the expansion of electronically stored information (ESI) due to the many different electronic devices Ombuds rely upon or interact with including computers, smartphones, and printers. It then reviews how novel legal issues caused by e-discovery--the search for relevant digital documents in litigation--will impact Ombuds. Finally, it offers Ombuds suggestions on managing and controlling ESI while raising the question of whether the International Ombudsman Association must review its Standards of Practice in light of these ESI developments.

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation -- A Presentation, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Def Con 19 Conference in Las Vegas, Nevada on August 7, 2011. The presentation discussed what the law has (or does not have) to say about evasion of geolocation or "cybertravel" -- acts by which a user makes geolocation tools believe that he is physically located somewhere other than where he is located.

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …

The Google Conundrum: Perpetrator Or Facilitator On The Net? - Forging A Fair Copyright Framework Of Rights, Liability And Responsibility In Response To Search Engine 2.0 - Part Ii: The Google Books Search Project, Warren B. Chik

Research Collection Yong Pung How School Of Law

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a …

Stolen Art, Looted Antiquities, And The Insurable Interest Requirement, Robert L. Tucker

Akron Law Faculty Publications

Trafficking in stolen art and looted antiquities is a multi-billion dollar enterprise. Stolen art and looted antiquities are ultimately sold to museums or private collectors. Sometimes the purchasers acquire them in good faith. But other times, the purchasers know, suspect, or willfully blind themselves to the possibility that the piece was stolen or illegally excavated and exported up the chain of title.

This problem is compounded by customs and course of dealing in the art and antiquities trade. Dealers generally decline to provide meaningful information to prospective purchasers about the provenance of a piece, and sophisticated purchasers customarily acquiesce in …

Intermediaries And Hate Speech: Fostering Digital Citizenship For Our Information Age, Danielle K. Citron, Helen Norton

Faculty Scholarship

No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group “Kill a Jew Day,” for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like “How to Kill Beaners,” “Execute the Gays,” and “Murder Muslim Scum.” The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based approach to …

Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Lidsky

Faculty Publications

Between the extremes of no interactivity and complete interactivity, it is difficult to predict whether courts will label a government sponsored social media site a public forum or not. But it is precisely "in between" where government actors are likely to wish to engage citizens and where citizens are most likely to benefit from government social media initiatives. The goal of this article, therefore, is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court's public forum jurisprudence in order to advise government actors wishing to establish social media forums.

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Law Student Publications

This Comment explores how the law should handle such privacy claims. In analyzing both the photographic privacy claims as well as the Wi-Fi data privacy claims, this paper argues that current tort law is inadequate for such technologically advanced legal issues. Section II explores the background of Google Maps Street View and current privacy law, while Section III looks at the holes in current privacy torts in the context of the images displayed on Street View. Section IV examines the privacy implications surrounding the Wi-Fi scandal, and finally, Section V reviews the solution and provides a conclusion.

The Google Conundrum: Perpetrator Or Facilitator On The Net? - Forging A Fair Copyright Framework Of Rights, Liability And Responsibility In Response To Search Engine 2.0 - Part I: The Google Images Search Engine, Warren B. Chik

Research Collection Yong Pung How School Of Law

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a …

Teens, Technology, And Cyberstalking: The Domestic Violence Wave Of The Future?, Andrew King-Ries

Faculty Law Review Articles

The American criminal justice system, (therefore), is facing a future domestic violence crisis. Unfortunately, authorities-both parents and law enforcement-tend to minimize the seriousness of violence within adolescent relationships and to minimize the seriousness of stalking. In addition, given the prevalence and embrace of technology by teenagers, criminalizing "normal" teenage behavior seems counter-productive. While an effective criminal justice system response to this problem has yet to be developed, the first step will be for parents and law enforcement to recognize the risk and take it seriously. The second step will be to "renorm" unhealthy teenage relationship norms. It is possible that …

Rough Consensus And Running Code: Integrating Engineering Principles Into Internet Policy Debates, Christopher S. Yoo

All Faculty Scholarship

This is the introduction to a symposium issue for a conference designed to bring the engineering community, policymakers, legal academics, and industry participants together in an attempt to provide policymakers with a better understanding of the Internet’s technical aspects and to explore emerging issues of particular importance to current broadband policy.

Craigslist, The Cda, And Inconsistent International Standards Regarding Liability For Third-Party Postings On The Internet, Peter Adamo

Pace International Law Review Online Companion

This Comment explores the nature and purpose of the Communications Decency Act (CDA), the legislative upbringing, and the application of the CDA to Craigslist. It compares the CDA to approaches taken abroad through legislation and judicial proceedings. It explains, contrary to the one other commentator to broach the subject matter, how the CDA continues to provide robust protection to Craigslist. Finally, it explores potential avenues for redrafting the CDA as well as the difficulties and trade-offs associated with implementing such change.

Network Accountability For The Domestic Intelligence Apparatus, Frank Pasquale, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Social Networking And Land Use Planning And Regulation: Practical Benefits, Pitfalls And Ethical Considerations, Patricia E. Salkin

Scholarly Works

This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses …

To Reveal Or Conceal?—An Isp’S Dilemma, Presenting A New “Anonymous Public Concern Test” For Evaluating Isp Subpoenas In Online Defamation Suits, Cayce Myers

LLM Theses and Essays

This article proposes a new test called the “Anonymous Public Concern Test” which incorporates public concern analysis in enforcing Internet Service Provider [ISP] subpoenas in online defamation suits. Anonymous speech is an important aspect of First Amendment rights that warrants protection. Current tests used by courts to analyze whether to enforce ISP subpoenas are either too pro-plaintiff or too pro-defendant. The article’s proposed “Anonymous Public Concern Test” is the best approach in dealing with ISP subpoenas because it protects both anonymous speeches and preserves online defamation plaintiffs’ rights.

The Death Of Slander, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone’s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person-to-person communication. Text messaging, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise.

At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical …

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Intermediaries And Hate Speech: Fostering Digital Citizenship For Our Information Age, Danielle Keats Citron, Helen L. Norton

Faculty Scholarship

No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group Kill a Jew Day, for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like How to Kill Beaners, Execute the Gays, and Murder Muslim Scum. The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based …

Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale

Faculty Scholarship

When American lawyers talk about "essential facilities," they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance.

In this chapter, I sketch a new concept of "essential cultural and political facility," which can help policymakers recognize and address situations where a bottleneck has become …

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

Intermediaries And Hate Speech: Fostering Digital Citizenship For Our Information Age, Danielle Keats Citron, Helen Norton

Publications

No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group Kill a Jew Day, for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like How to Kill a Beaner, Execute the Gays, and Murder Muslim Scum. The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate's history. We believe that a thoughtful and nuanced intermediary-based approach …

Judges, Friends, And Facebook: The Ethics Of Prohibition, 24 Geo. J. Legal Ethics 281 (2011), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

No abstract provided.

Rebooting Trademarks For The Twenty-First Century, 49 U. Louisville L. Rev. 517 (2011), Doris E. Long

UIC Law Open Access Faculty Scholarship

Trademarks have long suffered from an "ugly stepsister" status in the realm of intellectual property. Quasi-market regulation tool, quasi-investment property; trademark's historical role as both consumer-information signifier and producer-investment asset has led to increasingly confusing dichotomous treatment under the Lanham Act. The potentially borderless markets of cyberspace, with their new marketing techniques and new competitive spaces, have only heightened this confusion. Stumbling attempts to extend protection for marks under the Lanham Act beyond traditional notions of trademark use and consumer confusion to encompass the investment protection side of trademarks, such as the development of federal dilution and anti-cybersquatting acts, only …

Supervising Managed Services, James B. Speta

Faculty Working Papers

Many Internet-access providers simultaneously offer Internet access and other services, such as traditional video channels, video on demand, voice calling, and other emerging services, through a single, converged platform. These other services—which can be called "managed services" because the carrier offers them only to its subscribers in a manner designed to ensure some quality of service—in many circumstances will compete with services that are offered by unaffiliated parties as applications or services on the Internet. This situation creates an important interaction effect between the domains of Internet access and managed services, an effect that has largely been missing from the …

Adverse Publicity By Administrative Agencies In The Internet Era, Nathan Cortez

Faculty Journal Articles and Book Chapters

Nearly forty years ago, Ernest Gellhorn documented the potentially devastating impact that can occur when federal agencies issue adverse publicity about private parties. Based on his article, the Administrative Conference of the United States (ACUS) recommended that courts, Congress, and agencies hold agencies to clear standards for issuing such publicity. In the decades since, some agencies have adopted standards, but most have not. And neither the courts nor Congress has intervened to impose standards. Today, agencies continue to use countless forms of publicity to pressure alleged regulatory violators and to amplify their overall enforcement powers — all without affording due …

Is Internet Exceptionalism Dead?, Tim Wu

Faculty Scholarship

Is there such a thing as Internet exceptionalism? If so, just what is the Internet an exception to? It may appear technical, but this is actually one of the big questions of our generation, for the Internet has shaped the United States and the world over the last twenty years in ways people still struggle to understand. The question is not merely academic. The greatest Internet firms can be succinctly defined as those that have best understood what makes the Internet different.

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …