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Full-Text Articles in Law
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain
Faculty Scholarship
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …
The Rule Of Intellectual Property Law In The Internet Economy, Joel R. Reidenberg
The Rule Of Intellectual Property Law In The Internet Economy, Joel R. Reidenberg
Faculty Scholarship
This article argues that the technological attacks on intellectual property are a movement against democratically chosen intellectual property rules. They form a basic challenge to the rule of law and to the control of the rules wired into the network. In making this argument, the Article first maintains that intellectual property rights have an important public function in democracy in that they mark political, economic, and social boundaries. Next, the Article shows that the public law, as enacted by governments, has reallocated intellectual property rights to adapt to the information economy. While many aspects of this new allocation of rights …
States And Internet Enforcement, Joel R. Reidenberg
States And Internet Enforcement, Joel R. Reidenberg
Faculty Scholarship
This essay addresses the enforcement of decisions through internet instruments. The starting point is a brief justification of internet enforcement as the obligation of democratic states. Next, the essay argues that the movement to re-engineer the internet infrastructure by public and private actions also facilitates state enforcement of legal and policy decisions. The essay maintains that states will increasingly try to use network intermediaries such as payment systems and Internet Service Providers as enforcement instruments. Finally, and most importantly, the essay focuses on ways that states may harness the power of technological instruments such as worms, filters and packet interceptors …
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
Faculty Scholarship
For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Faculty Scholarship
This article examines the French court order requiring Yahoo to prevent French Internet users from accessing images of Nazi memorabilia available for auction on the company's American web site. The article uses the French case to challenge the popular belief that an entirely borderless Internet favors democratic values. The article starts from the premise that while the Internet enables actors to reach a geographically dispersed audience, the Internet should not change the accountability of those actors for their conduct within national borders. The article shows that Yahoo's extensive business in France justifies the application of France's democratically chosen law and …
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Faculty Scholarship
While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Faculty Scholarship
Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of …
Setting Standards For Fair Information Practice In The U.S. Private Sector, Joel R. Reidenberg
Setting Standards For Fair Information Practice In The U.S. Private Sector, Joel R. Reidenberg
Faculty Scholarship
The confluence of plans for an Information Superhighway, actual industry self-regulatory practices, and international pressure dictate renewed consideration of standard setting for fair information practices in the U.S. private sector. The legal rules, industry norms, and business practices that regulate the treatment of personal information in the United States are organized in a wide and dispersed manner. This Article analyzes how these standards are established in the U.S. private sector. Part I argues that the U.S. standards derive from the influence of American political philosophy on legal rule making and a preference for dispersed sources of information standards. Part II …
Rules Of The Road For Global Electronic Highways: Merging The Trade And Technical Paradigms, Joel R. Reidenberg
Rules Of The Road For Global Electronic Highways: Merging The Trade And Technical Paradigms, Joel R. Reidenberg
Faculty Scholarship
International efforts to define fair information practices for global networks derive from two distinct paradigms. Traditionally, regulatory standards have been cast in trade terms. The trade perspective seeks to promote free flows of information and define standards that balance free flows against human rights values. Fair information practices also draw on another rarely emphasized technical paradigm. This approach seeks to eliminate any technological obstacles to free flows of information by defining standards for system integrity and interoperability. Nevertheless, these technical standards are set in ways that also define fair information practices. While each paradigm provides a basis to establish rules …