Law Commons^™

Unfair Collection: Reclaiming Control Of Publicly Available Personal Information From Data Scrapers, Andrew M. Parks

Michigan Law Review

Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.

This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. …

Natural Language Processing For Lawyers And Judges, Frank Fagan

Michigan Law Review

A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.

Regulating Black-Box Medicine, W. Nicholson Price Ii

Michigan Law Review

Data drive modern medicine. And our tools to analyze those data are growing ever more powerful. As health data are collected in greater and greater amounts, sophisticated algorithms based on those data can drive medical innovation, improve the process of care, and increase efficiency. Those algorithms, however, vary widely in quality. Some are accurate and powerful, while others may be riddled with errors or based on faulty science. When an opaque algorithm recommends an insulin dose to a diabetic patient, how do we know that dose is correct? Patients, providers, and insurers face substantial difficulties in identifying high-quality algorithms; they …

The Racist Algorithm?, Anupam Chander

Michigan Law Review

Review of The Black Box Society: The Secret Algorithms That Control Money and Information by Frank Pasquale.

Installation Failure: How The Predominant Purpose Test Has Perpetuated Software’S Uncertain Legal Status Under The Uniform Commercial Code, Spencer Gottlieb

Michigan Law Review

Courts have struggled to uniformly classify software as a good or a service and have consequently failed to apply a consistent body of law in that domain. Instead, courts have relied on the predominant purpose test to determine whether the Uniform Commercial Code (“UCC”) or common law should apply to a given software contract. This test, designed for traditional goods and services that do not share software’s complexity or rapid advancement, has perpetuated the uncertainty surrounding software’s legal status. This Note proposes that courts adopt the substantial software test as an alternative to the predominant purpose test. Under this proposal, …

Cyberattacks And The Covert Action Statute: Toward A Domestic Legal Framework For Offensive Cyberoperations, Aaron P. Brecher

Michigan Law Review

Cyberattacks are capable of penetrating and disabling vital national infrastructure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks' unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. …

Will Quants Rule The (Legal) World?, Edward K. Cheng

Michigan Law Review

The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …

Agency, Code, Or Contract: Determining Employees' Authorization Under The Computer Fraud And Abuse Act, Katherine Mesenbring Field

Michigan Law Review

The federal Computer Fraud and Abuse Act ("CFAA ") provides for civil remedies against individuals who have accessed a protected computer without authorization or in excess of their authorization. With increasing numbers of employees using computers at work, employers have turned to the CFAA in situations where disloyal employees have pilfered company information from the employer's computer system. The vague language of the CFAA, however, has led courts to develop three different interpretations of "authorization" in these CFAA employment cases, with the result that factually similar cases in different courts can generate opposite outcomes in terms of employee liability under …

On Communication, John Greenman

Michigan Law Review

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …

Notification Of Data Security Breaches, Paul M. Schwartz, Edward J. Janger

Michigan Law Review

The law increasingly requires private companies to disclose information for the benefit of consumers. The latest examples of such regulation are state and federal laws that require companies to notify individuals of data security incidents involving their personal information. These laws, proposed in the wake of highly publicized data spills, seek to punish the breached entity and to protect consumers by requiring the entity to notify its customers about the security breach. There are competing approaches, however to how the law is to mandate release of information about data leaks. This Article finds that the current statutes' focus on reputational …

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry giants, …

"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson

Michigan Law Review

One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe …

Climbing The Walls Of Your Electronic Cage, Steven Hetcher

Michigan Law Review

Space. The final frontier. Not so, say the doyennes of the firstgeneration Internet community, who view themselves as the new frontiersmen and women staking out a previously unexplored territory - cyberspace. Numerous metaphors in the Internet literature picture cyberspace as a new, previously unexplored domain. Parallels are frequently drawn to the American colonies, the Western frontier, or outer space. In Code: And Other Laws of Cyberspace, Lawrence Lessig says, "Cyberspace is a place. People live there." In this place, we will build a "new society" (p. 4). A sense of this background is helpful in appraising Lessig's claims. He argues …

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch

Michigan Law Review

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization ("IS0") to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer ("OEM") for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions …

The Quest For Enabling Metaphors For Law And Lawyering In The Information Agae, Pamela Samuelson

Michigan Law Review

A Review of James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society and M. Ethan Katsh, Law in a Digital World

Defining Computer Program Parts Under Learned Hand's Abstractions Test In Software Copyright Infringement Cases, John W.L. Ogilive

Michigan Law Review

This Note proposes a set of computer program part definitions that develop Learned Hand's abstractions test to make it more useful in software infringement cases. The Note takes no position on the proper scope of protection for software under copyright law, but argues that no consensus is possible on which program parts deserve copyright protection until courts recognize that computer programs are composed of components whose definition lies beyond judicial control. Program parts defined in conclusory legal terms will never provide a stable basis for reasoned debate over the conclusions presumed in the definitions.

Idea, Process, Or Protected Expression?: Determining The Scope Of Copyright Protection Of The Structure Of Computer Programs, Steven R. Englund

Michigan Law Review

Courts considering the alleged copying of the structure, rather than literal copying of the text, of a computer program have usually concerned themselves with whether protected expression or an unprotected idea was copied. Courts have seldom suggested that it might be an unprotected process that was copied. However, this Note concludes that the legislative history of the 1976 Act indicates that that legislation's drafters envisioned a far more prominent role for the process-expression dichotomy than it has played to date. The process inquiry is at least as important as the idea inquiry in striking the proper balance between promoting progress …

Computer Programs As Goods Under The U.C.C., Michigan Law Review

Michigan Law Review

This Note addresses the requirements for governing computer program contracts by article 2 of the U.C.C.: that the several methods of selling programs be "transactions in goods" and that the goods not be merely incidental to accompanying services. This Note concludes that contracts for program copies are, in most contexts, transactions within the scope of article 2.

The Fcc Computer Inquiry: Interfaces Of Competitive And Regulated Markets, Michigan Law Review

Michigan Law Review

Since the advent of computer technology, data processing and communication services have become increasingly interdependent. In 1966, the Federal Communications Commission launched the Computer Inquiry to explore the broad range of regulatory and policy problems generated by this technological development.2

Personal Privacy In The Computer Age: The Challenge Of A New Technology In An Information-Oriented Society, Arthur R. Miller

Michigan Law Review

The purpose of this Article is to survey the new technology's implications for personal privacy and to evaluate the contemporary common-law and statutory pattern relating to data-handling. In the course of this examination, it will appraise the existing framework's capacity to deal with the problems created by society's growing awareness of the primordial character of information. The Article is intended to be suggestive; any attempt at definitiveness would be premature. Avowedly, it was written with the bias of one who believes that the new information technology has enormous long-range societal implications and who is concerned about the consequences of the …

Science-Computers-The Use Of Data Processing In Legal Research, Michigan Law Review

Michigan Law Review

In 1960, at the American Bar Association Annual Meeting in Washington, D.C., representatives of the University of Pittsburgh Health Law Center conducted a demonstration of the use of an electronic computer in searching statutory materials. For purposes of the search, each statutory section had been numbered consecutively and programmed into the computer which contained an alphabetical list of every word in the statutes (with the exception of articles) and their location. To locate material on a given topic, the searcher requested the machine to list the location of key words or combinations of words which he believed were present in …

Bank Statements, Cancelled Checks, And Article Four In The Electronic Age, Norman Penney

Michigan Law Review

My task was to prepare a short article dealing in some depth with specific problems which have arisen under Article Four of the Uniform Commercial Code (Code). Unfortunately for purposes of criticism, but happily for those affected by Article Four, a canvass of recent reported cases as well as bank operations people and bank counsel has revealed very few problems of any significance to either the general practitioner or even the so-called commercial law specialist. This prompts two comments: (1) Article Four seems to be working so smoothly that to develop a "problem" would be to make a mountain out …