Internet Law Commons^™

Are They Worth Reading? An In-Depth Analysis Of Online Trackers’ Privacy Policies, Candice Hoke, Lorrie Faith Cranor, Pedro Giovanni Leon, Alyssa Au

Law Faculty Articles and Essays

We analyzed the privacy policies of 75 online tracking companies with the goal of assessing whether they contain information relevant for users to make privacy decisions. We compared privacy policies from large companies, companies that are members of self-regulatory organizations, and nonmember companies and found that many of them are silent with regard to important consumer-relevant practices including the collection and use of sensitive information and linkage of tracking data with personally-identifiable information. We evaluated these policies against self-regulatory guidelines and found that many policies are not fully compliant. Furthermore, the overly general requirements established in those guidelines allow companies …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

Through A Prism Darkly: Surveillance And Speech Suppression In The Post-Democracy Electronic State", David Barnhizer

David Barnhizer

Through a PRISM Darkly: Surveillance and Speech Suppression in the “Post-Democracy Electronic State” David Barnhizer There is no longer an American democracy. America is changing by the moment into a new political form, the “Post-Democracy Electronic State”. It has “morphed” into competing fragments operating within the physical territory defined as the United States while tenuously holding on to a few of the basic creeds that represent what we long considered an exceptional political experiment. That post-Democracy political order paradoxically consists of a combination of fragmented special interests eager to punish anyone that challenges their desires and a central government that …

"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer

David Barnhizer

James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, …

The Benefit Of Adopting Comprehensive Standards Of Monitoring Employee Technology Use In The Workplace, Karin M. Mika

Law Faculty Articles and Essays

This article will examine issues as they relate to the privacy of employees’ lives given that nearly everything can be discovered by some form of electronic monitoring. It will posit that most laws as they exist today do little to apprise either the employer or the employee as to what type of electronic monitoring of personal communications is acceptable. It will further propose that most employer policies related to scrutinizing employee electronic communications are vague and unsuitable. The article will conclude that, given the leeway employers tend to be given (often justifiably so) in monitoring employees there is little chance …

Bullies In A Wired World: The Impact Of Cyberspace Victimization On Adolescent Mental Health And The Need For Cyberbullying Legislation In Ohio, Kelly A. Albin

Journal of Law and Health

This Note examines cyberbullying's impact on adolescents' mental health and psychological development and explores an Ohio-specific legislative response to the problem. Part II addresses the urgent need for cyberbullying legislation, the inadequacy of Ohio law, and the detrimental effects that may result when juveniles are targeted by cyberbullies. Part III demonstrates how other states have reacted to the cyberbullying problem by amending already enacted bullying statutes or by creating new and specific cyberbullying laws. Part IV proposes a new cyberbullying statute that criminalizes the more extreme cases of cyberbullying, incorporates age as a sentencing factor, and introduces school-employee liability for …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

Cleveland State Law Review

On October 17, 2006, Megan Meier, a thirteen-year-old girl in Dardenne Prairie, Missouri, who had been diagnosed with attention deficit disorder and depression, committed suicide because of postings on MySpace, an Internet social networking site, saying she was a bad person whom everyone hated and the world would be better off without. As a result, the state revised its harassment and stalking statutes to prohibit using electronic means to knowingly "frighten, intimidate, or cause emotional distress to another person."' At the time of this writing, twenty-one states have passed similar legislation with others sure to follow. Many of these statutes …

Workplace Privacy And Monitoring: The Quest For Balanced Interests , Ariana R. Levinson

Cleveland State Law Review

We can see in 2001 that 77 percent of employers were engaged in monitoring. This may have increased slightly or decreased slightly, but whatever has happened, we know that this is a significant amount of employers--much greater than a majority--that are engaging in monitoring of their employees. We can also see the great rise in monitoring of computers and electronic files in a ten-year period between 1997 and 2007. Finally, we can see some of the newer technologies. In 2007, twelve percent of the reporting employers were monitoring the blogosphere, eight percent were monitoring GPS vehicle tracking, and ten percent …

Novel Neutrality Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny , Jeffrey Jarosch

Cleveland State Law Review

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate Internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (“API”). These investigations represent a new attempt to shift the network neutrality …

Comments On Expanding Civic Participation In Voting By Expanded Use Of The Internet, Candice Hoke

Law Faculty Presentations and Testimony

Hoke's comments to the FCC on expanding civic participation in voting by expanded use of the Internet. Hoke recommends that the FCC not become involved in election regulatory issues concerning the Internet, but will support a different federal regulatory agency with national security and technical-cybersecurity expertise receiving primary jurisdiction over election cybersecurity.

A Comment On Information Propertization And Its Legal Milieu, Margaret Jane Radin

Cleveland State Law Review

My main purpose in this essay is to urge that policy arguments about property in the digital environment take explicit cognizance of other policy considerations that tend to bound propertization: contractual ordering, competition, and freedom of expression. These policy considerations form the legal milieu in which propertization is situated.

Rankings, Reductionism, And Responsibility , Frank Pasquale

Cleveland State Law Review

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, …

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

Cleveland State Law Review

As its two main Parts will evidence, this Comment remains the product of two distinct if overlapping voices. Part II returns to the conceptual origins of Radin's theory in her general critique of objectification and commodification. It asks whether a more positive concept of objectification can be recovered that is distinguishable from reification, the latter seeming to be the more appropriate locus of Radin's criticism. Part III's response to Radin is similar, but it tries to exemplify both our appreciation of and our differences from her work through more detailed analysis of intellectual property law and theory.

Capturing Ideas: Copyright And The Law Of First Possession, Abraham Drassinower

Cleveland State Law Review

Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines …

Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David Barnhizer

Cleveland State Law Review

This Symposium focuses in part on the ideas of Margaret Jane Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems …

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

Cleveland State Law Review

Margaret Jane Radin's paper discusses the ways modern technologies have prompted new thinking within and about property, and the way the legal response has failed to take sufficiently into account the countervailing considerations that have shaped earlier Property Law developments. Some new technologies have also caused intellectual and practical struggles within Contract Law. This paper will consider some of the developments of Contract Law related to these changes, in particular the transactions relating to the sale, leasing or free use of computer software and the purchase of computers. Part I of this paper introduces the topic and offers an overview …

Exporting Dmca Lockouts, Anupam Chander

Cleveland State Law Review

My goal here is limited. I do not attack the anti-circumvention provisions of the DMCA as wholly misguided; the desire to prevent widespread piracy of copyrighted works is understandable. At the same time, I do not mean to suggest that the critique I offer here is the sum of the adverse consequences of that statute, including for speech and education. My argument is limited to the threat posed by the export of the DMCA anti-circumvention rules, which do not explicitly guard against the anti-competitive use of those rules.Part I briefly sketches the difficulties created domestically by a DMCA inattentive to …

Cybertrespass And Trespass To Documents, Kevin Emerson Collins

Cleveland State Law Review

In this essay, I offer only a small contribution to the ongoing cybertrespass debate that I believe allows the debate to be seen from a different perspective. In other words, I add a new story to the mix. I explore what I call trespass to documents. The cases applying trespass to documents are real-space, pre-Internet variants of a subset of the cybertrespass cases. They demonstrate that property rights in the tangible medium on which information is inscribed have not historically been broad enough to trump the complicated balancing of interests that characterizes information law when free-speech and competition-policy concerns are …

Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David R. Barnhizer

Law Faculty Articles and Essays

This Symposium focuses in part on the ideas of Margaret Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems through …

Propertization Metaphors For Bargaining Power And Control Of The Self In The Information Age, Daniel D. Barnhizer

Cleveland State Law Review

This Article argues that the threatening consequences of this commodification and propertization of consumers' electronic selves represent only part of the picture. Information era technological developments provide more tools than ever available before by which consumers can place boundaries around their right to consent and exclude others from that arena. Thus, Internet-based contracting allows consumers to access a broad range of bargaining power inputs to protect their power to withhold consent. Instead of an amorphous, indefinable quality of contracting parties, bargaining power may now be characterized as a series of discrete inputs that can be identified, evaluated, exchanged and owned. …

Monism, Nominalism, And Public-Private In The Work Of Margaret Jane Radin, Christopher L. Sagers

Cleveland State Law Review

This essay begins by situating the distinction in history generally and in American legal thought. Its historical aspect seems important because it suggests that the distinction is not predetermined—it is historically and culturally contingent. That fact has been largely ignored in the American legal academy, and among most of the judiciary it is all but outright socialist treachery to suggest it.

The essay moves on to consider Radin's work itself. The prominence of the distinction is relatively obvious in some of her work on technological marketing and design issues, but I will suggest that in fact it runs quietly just …

Electronic Signatures In E-Healthcare: The Need For A Federal Standard, Ashoke S. Talukdar

Journal of Law and Health

Healthcare, like many industries, is fast embracing the benefits of modern information technology ("IT"). The wide range of available publications on the use of IT in healthcare indicates that IT provides the promise of faster and more comprehensive information about all aspects of the healthcare delivery process, to all classes of its consumers - patients, doctors, nurses, insurance adjudicators, health inspectors, epidemiologists, and biostatisticians. But the drive towards electronic information in health care is not rooted merely in efficiency; more recently, significant emphasis has been placed on patient safety issues raised by the Institute of Medicine's ("IOM") year 2001 quality …

Information V. Commercialization: The Internet And Unsolicited Electronic Mail, Karin M. Mika

Law Faculty Articles and Essays

In November of 1996, the District Court of Eastern Pennsylvania allowed America Online to prohibit a business from using the Internet for sending bulk, unsolicited electronic mail. The decision highlighted some intriguing issues related to how the Internet interacts with the current legal framework and how legal standards that have adequately encompassed most business uses for emerging technologies are not a perfect fit for issues related to the Internet. This article will focus on the current struggle to fit the Internet into some type of existing legal framework, especially with respect to Internet business uses. It will focus primarily on …

Cyberdoctors: The Virtual Housecall--The Actual Practice Of Medicine On The Internet Is Here; Is It A Telemedical Accident Waiting To Happen?, Barbara Tyler

Law Faculty Articles and Essays

This Article explores some of the historical background and uses of the computer in the education and support of patients as well as some current World-Wide Web sites available to educate consumers and physicians. While professionals in the field of health are concerned about the sudden proliferation of over 10,000 Internet web sites devoted to health and medical information, the existence of these sites points out that people are intrigued by medical information. The very strength of the Internet lies in the ability of users to freely express their views on any topic, including health care. Also, this Article focuses …

Internet Jurisdictional Issues: Fundamental Fairness In A Virtual World, Karin M. Mika, Aaron J. Reber

Law Faculty Articles and Essays

This Article explains Internet jurisdictional issues within the current framework that enables a state to assert in personam jurisdiction. This Article argues that existing jurisdictional tests are appropriate in determining the fairness of jurisdiction in cases involving the Internet, despite the vast outreach capacity of computers. This Article will first examine the development of law concerning in personam jurisdiction. Next, this Article will reflect on how courts have handled jurisdictional issues respecting other modes of communication, namely the mail and telephone. Third, this Article will argue that in traditional jurisdictional analysis, courts have placed primary emphasis on business contacts and …

Commercial Exploitation Or Protected Use? Stern V. Delphi Internet Services Corporation And The Erosion Of The Right Of Publicity, Karin M. Mika, Aaron J. Reber

Law Faculty Articles and Essays

This article addresses the repercussions of Stern v. Delphi Internet Services Corporation and argues that the decision in Stern opens the door to a broader interpretation of “newsworthiness” and “public interest” that will enable advertisers broader First Amendment protections when using “unauthorized” likenesses. This article posits that artful advertisers could very well use the theory of Stern as a basis for virtually ensuring that every “unauthorized likeness” will enjoy First Amendment protection and not be considered as violative of the right of publicity.