Law Commons^™

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Governing The Interface Between Natural And Formal Language In Smart Contracts, Joshua A.T. Fairfield, Niloufer Selvadurai

Scholarly Articles

Much of the confusion about the proper regulation of smart contracts stems from the fact that both code and law are expressed in language. Natural (human) and formal (computer) languages are profoundly different, however. Natural language in the form of a true legal contract expresses human meaning and expectation. Code simply acts, and when code acts contrary to the understanding of the parties to a contract, courts must have a theoretical and legal basis in order to intervene--which this Article provides.

Present scholarship on the governance of smart contracts centers on logistical problems relating to the effects of automation on …

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Scholarly Articles

Markets for unique digital property--digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity--have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

Property As The Law Of Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

Property law in the twentieth century moved from the law of things to the law of rights in things. This was a process of fragmentation: Under Hohfeldian property, we conceive of property as a bundle of sticks, and those sticks can be moved to different holders; the right to possess can be separated from the record ownership right, for example. The downside of Hohfeld's model is that physical objects—things—become informationally complicated. Thing-ness constrains the extravagances of Hohfeldian property: although we can split off the right to possess from the right to exclude, use, destroy, copy, manage, repair, and so on, …

#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl

Scholarly Articles

With limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.

Moreover, the use of social media in tax enforcement may pose a particular harm to an especially vulnerable population: low-income …

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Scholarly Articles

This Article constitutes a lightly edited transcription of Joshua Fairfield's oral remarks at the April 6, 2018 Cleveland State Law Review Symposium on Blockchain Law and Technology.

The author posits that there is a tendency to think that technology will emerge triumphant in resolving physical problems, including banking and transactional recording; that there is sort of a "tech-bro utopianism," epitomized by Mark Zuckerberg, suggesting that what we need is a technological, not a human, solution. He states that one major problem is that social technologists, psychologists, historians, linguists, and cultural anthropologists are not on the development teams that are building …

Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor

Scholarly Articles

Smart-city technology is being adopted in cities all around the world to simplify our lives, save us time, ease traffic, improve education, reduce energy usage, and keep us healthy and safe. Its adoption is necessary because of changes that are predicted for urban dwellers over the next three decades; urban population and travel are predicted to increase dramatically and our population is graying, meaning the population will include a much greater number of elderly citizens. As these changes occur, smart-city technology can have a huge impact on public safety, improving the ability of law enforcement to investigate crimes, both with …

Cybersurveillance Intrusions And An Evolving Katz Privacy Test, Margaret Hu

Scholarly Articles

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first Cybersurveillance tool, Geofeedia, has been deployed by state and local law enforcement. Geofeedia uses a process known as "geofencing" to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes. The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS). FAST is another predictive policing tool that analyzes physiological and behavioral signals with the …

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Scholarly Articles

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

Crimmigration-Counterterrorism, Margaret Hu

Scholarly Articles

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically driven screening technologies can be better understood through the analytical prism of “crimmigration-counterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” …

From The National Surveillance State To The Cybersurveillance State, Margaret Hu

Scholarly Articles

This article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, …

Digital Innocence, Joshua A.T. Fairfield, Erik Luna

Scholarly Articles

Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of …

Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield

Scholarly Articles

Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people, and things with rich virtual experiences.

As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that …

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds.

Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The …

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Scholarly Articles

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically — telephone numbers do not change, whereas Internet protocol (IP) …

The Challenges To Legal Education In 1973 And 2012: An Introduction To The Anniversary Issue Of The Hofstra Law Review, Nora V. Demleitner

Scholarly Articles

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Nexus Crystals: Crystallizing Limits On Contractual Control Of Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot.

The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …

Castles In The Air: F. Gregory Lastowka's Virtual Justice, Joshua A.T. Fairfield

Scholarly Articles

This Article argues that informed consent to contract terms is not a good to be maximized, but an information cost that courts should minimize. As a result, courts ought to minimize the cost sum of information costs and contractual surprise. The Article applies information-cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential consumers. The Article demonstrates …

The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla

Scholarly Articles

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The Magic Circle, Joshua A.T. Fairfield

Scholarly Articles

This Article examines the concept of the "magic circle," the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no "real" world as distinguished from "virtual" worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual …

The End Of The (Virtual) World, Joshua A.T. Fairfield

Scholarly Articles

Virtual worlds have been the next big thing for some time now. In 2008, more than 100 public virtual worlds received venture capital funding - a significant increase over previous years. Yet virtual worlds have been going bankrupt faster than ever, including several high-profile firms and worlds. Every technology goes through a shakedown phase, and for virtual worlds the current recession has served as a catalyst for a downturn that, although not unexpected, is nevertheless startling in both numbers and rapidity.

This article examines the intimate relationship between how a virtual world begins life and how it ends. The amount …

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Scholarly Articles

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches - which emphasize a website's "interactivity" and "target audience" - are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This Article argues that courts …

Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield

Scholarly Articles

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.

A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …