Law Commons^™

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain

Michigan Telecommunications & Technology Law Review

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about federal administration of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission (“FCC”) should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a …

Head Versus Heart: Applying Empirical Evidence About The Connection Between Child Pornography And Child Molestation To Probable Cause Analyses, Emily Weissler

Fordham Law Review

As the internet has become nearly ubiquitous, child pornography possession has become increasingly widespread. Law enforcement efforts to combat the reach of these images have become increasingly aggressive and sophisticated. Sentences have also dramatically increased. As of 2008, the mean sentence for child pornography possession was ninety–two months, with a mandatory minimum sentence of five years.

Circuit courts have confronted child pornography search warrant applications based mainly upon a prior child molestation conviction or enticement of a minor. Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to …

Misplaced Misrepresentations: Why Misrepresentation-Of-Age Statutes Must Be Reinterpreted As They Apply To Children’S Online Contracts, Michelle A. Sargent

Michigan Law Review

The information age revolutionized the relationship between individuals and the internet. Today, children are the targets of online advertisements that lure them into accepting terms of service, thus entering into online agreements. While children may feel comfortable navigating websites, they are psychologically predisposed to be unsophisticated and impulsive actors online. Children lack the digital literacy to understand the implications of accepting website terms of service. Meanwhile, several states have misrepresentation-of-age statutes that prevent children from using the infancy doctrine to disaffirm online contracts because, in accepting the terms of service, children often represent that they are old enough to enter …

Surveillance Law Through Cyberlaw's Lens, Patricia L. Bellia

Patricia L. Bellia

The continuing controversy over the surveillance-related provisions of the USA Patriot Act highlights the depth of Americans' concern about internet privacy. Although calls to limit the government's surveillance powers strike a chord with the public, the legal framework governing surveillance activities is highly technical and poorly understood. The Patriot Act's sunset date provides Congress with an opportunity to revisit that framework.

This Article seeks to contribute to the debate over the appropriate scope of internet surveillance in two ways. First, the Article explores the intricacies of the constitutional and statutory frameworks governing electronic surveillance, and particularly surveillance to acquire electronic …

Rape Shield Laws And The Social Media Revolution: Discoverability Of Social Media--It's Not Private, Seth I. Koslow

Touro Law Review

No abstract provided.

Identity Theft On Social Networking Sites: Developing Issues Of Internet Impersonation, Maksim Reznik

Touro Law Review

This Comment focuses on the dangers of social media sites when a person gains access to another's online account through two different methods: (1) stealing the third party's password, or (2) creating a completely fake profile and subsequently impersonating that person.

"The Disorderly Conduct Of Words": Civil Liability For Injuries Caused By The Dissemination Of False Or Inaccurate Information, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the potential liability of those who disseminate false or inaccurate information that causes physical injury or property damage to those who rely upon it. However, this Article will not address the question of whether those who advocate or depict violence or other antisocial activities should also be subject to liability. For the most part, such publications are considered to be a form of constitutionally protected speech, even when they directly cause physical harm to others. Although the issue of liability for the publication of factually inaccurate information is narrower in scope than liability for the …

Should The Internet Exempt The Media Sector From The Antitrust Laws?, Thomas J. Horton, Robert H. Lande

All Faculty Scholarship

This article examines whether the "old media" and the "new media", including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast …

Dr. Generative Or: How I Learned To Stop Worrying And Love The Iphone, James Grimmelmann, Paul Ohm

James Grimmelmann

No abstract provided.

Rankings, Reductionism, And Responsibility , Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate in Part I below, and setting forth a normative basis for regulation of their results in Part II, this piece proposes (in Part III) some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted high-ranking results relating to them, or exclusion from a page they claim it is their “due” to appear on. In the first case (deemed “inclusion harm”), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, …

“Them Feds Don’T Play Fair” : The Fourth Amendment And Cloud-Based Data, Laurie B. Serafino

Laurie B. Serafino

Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the …

Restoring Transparency To Automated Authority, Frank Pasquale

Frank A. Pasquale

Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness. However well an "invisible hand" coordinates economic activity generally, markets depend on reliable information about the practices of core firms that finance, rank, and rate entities in the rest of …

Privacy, Antitrust, And Power, Frank Pasquale

Frank A. Pasquale

When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level. To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Frank A. Pasquale

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets. After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Finding Privacy In A Sea Of Social Media And Other E-Discovery, Allyson Haynes Stuart

Allyson Haynes Stuart

This article looks at the case law governing discovery of social media, and finds several problems. First, many courts are improperly requiring a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, they allow overbroad discovery, often requiring a litigant to turn over its username and password to the other party. At the same time, parties are seeking such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other …

The Implications Of Excluding State Crimes From 47 U.S.C. §230’S Immunity, Eric Goldman

Faculty Publications

In June 2013, the State Attorneys General signaled their intent to ask Congress to amend 47 U.S.C. 230, the federal law that says websites aren't liable for third party content. The State AGs want to exclude state criminal prosecutions from the immunity. This essay explains the problems such an amendment would create for the Internet user-generated content community.

Migración A La Nube: ¿Está Segura Nuestra Información?, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors discuss the benefits and risks of moving your business data to the cloud through case studies and offer practical tips to protect business confidential information stored in the cloud. //////////////////////// Los autores estudian los beneficios y los riesgos de almacenar datos e información en la nube a través de casos de estudio y ofrecen consejos prácticos para proteger la información comercial confidencial almacenada en la nube.

Fifteen Minutes Of Infamy: Privileged Reporting And The Problem Of Perpetual Reputational Harm, Richard J. Peltz-Steele

Richard J. Peltz-Steele

This Article provides an overview of the labyrinth of media tort defenses, specifically the four privileges – fair comment, fair report, neutral reportage, and wire service – that come into play when the media republish defamatory content about criminal suspects and defendants without specific intent to injure. The Article then discusses these privileges in light of a hypothetical case involving a highly publicized crime and an indicted suspect, against whom charges are later dropped, but who suffers perpetual reputational harm from the out-of-context republication online of news related to his indictment. The Article demonstrates how the four privileges would operate …

When The Classroom Is Not In The Schoolhouse: Applying Tinker To Student Speech At Online Schools, Brett T. Macintyre

Seattle University Law Review

Despite the overwhelming increase in students’ Internet use and the growing popularity of online public schools, the United States Supreme Court has never addressed how, or if, schools can discipline students for disruptive online speech without violating the students’ First Amendment rights. What the Supreme Court has addressed is how school administrators can constitutionally discipline students within traditional schools. In a landmark decision, Tinker v. Des Moines Independent Community School District, the Supreme Court announced the now famous principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Still, the Court …

Anonymity In Cyberspace: Judicial And Legislative Regulations, Sophia Qasir

Fordham Law Review

Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they …

Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park

Management Faculty Publications and Presentations

No abstract provided.

Creation Of Transnational Administrative Structures Governing Internet Communication, The , Russell L. Weaver, Duncan Fairgrieve, Francois Lichere

Missouri Law Review

As the world becomes more economically integrated, increasing numbers of problems arise that are best handled through international treaties and transnational regulatory structures.4 For example, there have been concerns regarding the safety of products shipped from developing countries. These concerns have involved manufactured products, but have been particularly evident with food. Numerous examples can be found. The Japanese “discovered high levels of pesticides in imported spinach,” and U.S. “pets died from eating [imported] pet food contaminated with toxic chemicals.” In France, pesticides were discovered in fish imported from Africa, prompting the French government to suspend the importation of all fishes …

Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar

Missouri Law Review

In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether “liking” a page on Facebook is speech protectable by the First Amendment. This Note argues that the court’s holding, that “liking” something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background …

A Pragmatic Approach To Intellectual Property And Development: A Case Study Of The Jordanian Copyright Law In The Internet Age, Rami Olwan

Rami Olwan

On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and …

Copyright Tussle And Search Engines, Anoop Kumar Yadav

anoop kumar yadav

The Intellectual Property Laws (I.P. Laws) have, to a great extent, proved to be successful in nipping the copyright infringement in its bud. The I.P. Laws provide umbrella jurisprudence, which seek to protect the creativity of the authors. But despite that, it has been widely observed that the I.P. Laws have failed to cover other aspects of the intellectual property. For example, the liability of the search engines for the copyright infringement has remained out of the ambit of the I.P. Laws. The paper is focused on drawback of the Information Technology laws in various nations. Further, it also suggests …

Net Neutrality: Preparing For The Future, Jennifer Wong

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan

Michigan Law Review

Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento

Michigan Telecommunications & Technology Law Review

Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …