Consumer Protection Law Commons^™

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors . Users are easy to become victims of exploitative terms, because their consent has …

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors1. Users2 are easy to become victims of exploitative terms, because their consent has been …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter

Megan M Carpenter

This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …

The Unexamined Life In The Era Of Big Data: Toward A Udaap For Data, Sean Brian

Sean Brian

No abstract provided.

Public School Governance And Cyber Security: School Districts Provide Easy Targets For Cyber Thieves, Michael A. Alao

Michael A. Alao

School districts rely on information systems to a similar extent as private, business organizations, yet the rules and regulations to ensure that school districts maintain adequate security to prevent data breaches and theft have failed to keep pace with private-sector developments. Advances in the private sector include notice-of-breach laws, consumer protection laws limiting individual liability for fraudulent electronic funds transfers, and auditing and reporting of internal controls. The public sector, including school districts, has also made advances in cyber security rules and regulations, but to a more limited extent than the private sector. Because of the sheer number of public …

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

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

Joshua A.T. Fairfield

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 …

Consumers As Marketers: An Analysis Of The Facebook “Like” Feature As An Endorsement, Chang Zhou

Chang Zhou

No abstract provided.

How To Sculpt A Settlement And Notice Program That Will Minimize Scrutiny And Professional Objectors, Cassie L. Needels

Cassie L Needels

This article is focused on the importance of developing a settlement and notice program that will minimize scrutiny and professional objections, as well as how to implement a settlement and notice program accordingly. By using readily available resources, avoiding hot button indicators, effectively reaching the class, including all required information in the notice documents, avoiding legalese in all class communications, and allowing adequate time for class members to respond, you should be able to overcome judicial scrutiny and minimize the number of objections. Written by Judicially-recognized legal notification experts and a settlement administration expert with an extensive background as an …

Privacy, Transparency & Google's Blurred Glass, Jonathan I. Ezor

Jonathan I. Ezor

No matter the context or jurisdiction, one concept underlies every view of the best practices in data privacy: transparency. The mandate to disclose what personal information is collected, how it is used, and with whom and for what purpose it is shared, is essential to enable informed consent to the collection, along with the other user rights that constitute privacy best practices. Google, which claims to support and offer transparency, is increasingly opaque about its many products and services and the information they collect for it, posing a significant privacy concern.

Pitfalls And Promises Of Social Media And Mobile Lawyering, Jonathan I. Ezor

Jonathan I. Ezor

No abstract provided.

Mental Budget And Inefficient Clauses: A Lesson From Behavioral Law Nand Economics, Enrico Baffi

enrico baffi

This paper is an attempt to highlight how clauses, which are traditionally considered to be inefficient, may actually be desired by consumers. This anomaly originates in the fact that each individual builds a mental budget by dividing the money he has among the needs he intends to satisfy. According to consumers’ reasoning, money is not fungible, in the sense that amounts cannot be transferred from one expenditure to another. Consumers who behave in this way may sometimes find that they have depleted the amount they budgeted for an item while wanting to buy more of it. Since additional time, efforts …

Privacy And Data Protection In Business: Laws And Practices (Sample Chapters), Jonathan I. Ezor

Jonathan I. Ezor

In the fields of digital privacy and data protection in the business world, effective compliance and risk management require not only knowledge of applicable laws and regulations, but at least a basic understanding of relevant technologies and the processes of the company or other organization that is collecting and/or using the personal information or monitoring behavior. This book is structured to provide a framework for law and other students to both learn the law and place it in the necessary technological and practical context, divided into topic areas such as children’s privacy, health information, governmental requirements, employee data and more. …

Social Media And Legal Ethics, Jonathan I. Ezor

Jonathan I. Ezor

A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice E. Stucke, Allen Grunes

College of Law Faculty Scholarship

In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …

Biometrics, Retinal Scanning, And The Right To Privacy In The 21st Century, Stephen Hoffman

Stephen P. Hoffman

Biometric identification techniques such as retinal scanning and fingerprinting have now become commonplace, but near-future improvements on these methods present troubling issues for personal privacy. For example, retinal scanning can be used to diagnose certain medical conditions, even ones for which the patient has no symptoms or has any other way of detecting the problem. If a health insurance company scans the retinas of potential clients before they purchase coverage, they could be charged higher premiums for conditions that do not present any issues. Not only is this unfair, but the ease with which these scans can be conducted—including scanning …

Private Copyright: Digital Rights Management Systems And The Consumer, Victor Nicholas Knipe

ExpressO

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States.

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Business Blogs And Commercial Speech: A New Analytical Framework For The 21st Century, Robert Sprague

Robert Sprague

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel

ExpressO

Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the court applies …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Identity Theft And Consumer Protection: Finding Sensible Approaches To Safeguard Personal Data In The United States And Canada, Kamaal Zaidi

ExpressO

This paper examines identity theft in both the United States and Canada. Various examples of commercial fraud and scams are discussed in the context of a growing trend of identity thieves assuming identities of innocent consumers. As such, various pieces of legislation and consumer initiatives (involving online consumer complaint mechanisms)in U.S. and Canadian jurisdictions are highlighted to demonstrate the pursuit towards broader consumer protection of personal data used in daily commercial transactions. The author argues that these modern efforts to safeguard consumers from identity theft is a progressive measure that will continue to afford increasing protections for consumer personal data, …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

ExpressO

“Privacy” is one of the fastest growing areas of the law, due in part to the explosion of the Internet over the past decade. When we speak of privacy in the Internet age, we typically mean data protection, the regulation of the use of personal information about individuals by private interests, such as corporations. Unfortunately, much of the discourse on the subject adopts a framework more suitable to traditional privacy, an inviolable “right to be let alone” by the state. Rather than create a sacrosanct right against the government, the modern incarnation of privacy actually creates a quasi-property right, where …