Law Commons^™

Cybersecurity Oversight Liability, Benjamin P. Edwards

Georgia State University Law Review

A changing cybersecurity environment now poses a significant corporate-governance challenge. Although some cybersecurity data breaches may be inevitable, courts now increasingly consider when a corporation’s officers and directors may be held liable on theories that they acted in bad faith and failed to adequately oversee the corporation’s affairs. This short essay reviews recent derivative decisions and encourages corporate boards to recognize that in an environment filled with increasing threats, a reasonable response will require devoting real resources and attention to cybersecurity issues.

Russia Today, Cyberterrorists Tomorrow: U.S. Failure To Prepare Democracy For Cyberspace, Jonathan F. Lancelot

Journal of Digital Forensics, Security and Law

This paper is designed to expose vulnerabilities within the US electoral system, the use of cyberspace to exploit weaknesses within the information assurance strategies of the democratic and republican party organizations, and deficiencies within the social media communications and voting machine exploits. A brief history of discriminatory practices in voting rights and voting access will be set as the foundation for the argument that the system is vulnerable in the cyber age, and the need for reform at the local, state and national levels will be emphasized. The possibility of a foreign nation-state influencing the outcome of an election by …

Control On Blockchain Network, Aleksei Gudkov

Nova Law Review

No abstract provided.

Terms Of Service And The Computer Fraud And Abuse Act: A Trap For The Unwary?, David A. Puckett

Oklahoma Journal of Law and Technology

No abstract provided.

Public Security & Digital Forensics In The United States: The Continued Need For Expanded Digital Systems For Security, Deborah G. Keeling, Michael Losavio

Journal of Digital Forensics, Security and Law

Digital Forensics is one of the latest challenges for the use of forensics in the investigative process in the United States. Some of the challenges are created by conditions and circumstances present for law enforcement around the world. However, many are unique to the United States and created by the standards of evidence within our courts, nature of our law enforcement organizations, and structure of our judicial and prosecutorial systems. It is essential for the preservation of public security and individual safety that competent systems of digital forensics are developed for law enforcement at all levels. The failure to do …

Enhancing Cybersecurity In The Private Sector By Means Of Civil Liability Lawsuits - The Connie Francis Effect, Jeffrey F. Addicott

University of Richmond Law Review

The purpose of this article is to explore the threats posed by

cybersecurity breaches, outline the steps taken by the government

to address those threats in the private sector economy, and

call attention to the ultimate solution, which will most certainly

spur private businesses to create a more secure cyber environment

for the American people-a Connie Francis-styled cyber civil

action lawsuit.

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Our Time Is Better Spent Influencing Future Disruption: A Call To End The Indiscriminate War Against Self-Help Legal Technology, Olivia Holder

The University of Cincinnati Intellectual Property and Computer Law Journal

Under the guise of consumer protection, lawyers and bar associations have used disparate litigious mechanisms to thwart, inadvertently or not, the use of self-help legal technology. This paper will demonstrate that such adversity is not logical after a consideration of the technical functions that the software performs and unduly restricts underserved populations’ access to the law because of the misapplication of policy to vaguely worded laws. This paper will provide a thorough analysis of legal action taken against the high-profile company LegalZoom under the theory of unauthorized practice of law provides direct support of this claim. Summary and critique of …

Just What The Doctor Ordered: Protecting Privacy Without Impeding Development Of Digital Pills, Amelia R. Montgomery

Vanderbilt Journal of Entertainment & Technology Law

Using technology, humans are receiving more and more information about the world around them via the Internet of Things, and the next area of connection will be the inside of the human body. Several forms of "digital pills" that send information from places like the human digestive tract or bloodstream are being developed, with a few already in use. These pills could stand to provide information that could drastically improve the lives of many people, but they also have privacy and data security implications that could put consumers at great risk. This Note analyzes these risks and suggests that short-term …

Plugging The Rabbit Hole: The Supreme Court's Decision In Alice, Steven Swan

Utah Law Review

The two-step analysis in Mayo is insufficient to objectively analyze and make consistent determinations on patent eligibility. The effects of Alice are prime exhibits of this conclusion. Uncertainty and confusion in the realm of patents and software technology have risen to such a level that there is a telling impact on the economy and perhaps far greater devastation to the economy on the horizon. At the same time, the patent prosecution process has become increasingly expensive and difficult for both the client and drafting attorney provided the sheer number of Section rejections that are challenging to overcome. Consequently, this Note …

Need For Informed Consent In The Age Of Ubiquitous Human Testing, Caitlyn Kuhs

Loyola of Los Angeles Law Review

No abstract provided.

Anarchy, Status Updates, And Utopia, James Grimmelmann

Pace Law Review

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; PayPal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power, there is also social power. Whenever people come together …

Silencing The Call To Arms: A Shift Away From Cyber Attacks As Warfare, Ryan Patterson

Loyola of Los Angeles Law Review

Cyberspace has developed into an indispensable aspect of modern society, but not without risk. Cyber attacks have increased in frequency, with many states declaring cyber operations a priority in what has been called the newest domain of warfare. But what rules govern? The Tallinn Manual on the International Law Applicable to Cyber Warfare suggests existent laws of war are sufficient to govern cyber activities; however, the Tallinn Manual ignores fundamental problems and unique differences between cyber attacks and kinetic attacks. This Article argues that several crucial impediments frustrate placing cyber attacks within the current umbra of warfare, chiefly the problems …

Buying Teams, Andres Sawicki

Seattle University Law Review

The Sixth Annual Berle Symposium reflects on Margaret Blair and Lynn Stout’s classic article: A Team Production Theory of Corporate Law. Blair and Stout recast the modern law of public corporations through the lens of the team production theory of the firm. Here, I apply Blair and Stout’s insights—emphasizing the value of team production, independent monitors, and intellectual property rights—to a novel corporate transaction structure: the acqui-hire. In an acqui-hire, a publicly owned technology firm wants to add a start-up’s engineers. Instead of simply hiring them, though, it buys the start-up, discards most of its assets, and retains the start-up’s …

Copyright, Consumerism, And The Cloud: Proposing Standards-Essential Technology To Support First Sale In Digital Copyright, Marco Puccia

Seattle University Law Review

America’s entertainment industry, and the creative talent that drives it, is a national treasure. Equally valuable, however, is America’s drive and commitment toward technological innovation. These two sectors have been in tension since at least 1908, when the U.S. Supreme Court was asked to determine whether the makers of piano rolls for automatically playing pianos had to pay royalties to the composers. Since that time, the entertainment industry has continued to use copyright law to resist advances in technological innovation that it views as a threat to its existing business models. This Note seeks to provide the necessary context and …

The "Bring Your Own Device" Conundrum For Organizations And Investigators: An Examination Of The Policy And Legal Concerns In Light Of Investigatory Challenges, Carla J. Utter, Alan Rea

Journal of Digital Forensics, Security and Law

In recent years, with the expansion of technology and the desire to downsize costs within the corporate culture, the technology trend has steered towards the integration of personally owned mobile devices (i.e. smartphones) within the corporate and enterprise environment. The movement, known as “Bring Your Own Device” (hereinafter referred to as “BYOD”), seeks to minimize or eliminate the need for two separate and distinct mobile devices for one employee. While taken at face value this trend seems favorable, the corporate policy and legal implications of the implementation of BYOD are further complicated by significant investigatory issues that far outweigh the …

E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk

Seattle University Law Review

Amazon’s main rival, Apple, went to great lengths and took major risks to enter the e-book market. Why did Apple simply choose not to compete on the merits of its product and brand equity (the iPad and iBookstore) as it does with its other products? Why did Apple decide not to continue to rely on its earlier success of situating its products differently in the market than other electronics and working hard to be different and cutting-edge with its e-book delivery? This Note argues that the combination of Amazon’s 90% market share, network externalities, and an innovative technology market creates …

Digital Democracy: Anderson V. Bell & The Expansion Of Electronic Signatures In Election Law, Barry G. Statford

Utah OnLaw: The Utah Law Review Online Supplement

Electronic signatures have become increasingly accepted in the law, but even so, validation and legitimacy come slowly. Congress and the various states have taken substantial steps to create uniform standards for electronic records and signatures through the passage of legislation like E-SIGN and UETA.

But as the Utah Supreme Court observed, there are other valid “transactions” in the law where these statutes should apply. In Anderson v. Bell, it applied to an independent candidate’s ballot qualification. The Utah Legislature disagreed, however, and amended the Utah Election Code to exclude electronic signatures.

This Note advocates expanding the reach of an electronic …

Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel

Pepperdine Law Review

No abstract provided.

Coding Privacy, Lilian Edwards

Chicago-Kent Law Review

Lawrence Lessig famously and usefully argues that cyberspace is regulated not just by law but also by norms, markets and architecture or "code." His insightful work might also lead the unwary to conclude, however, that code is inherently anti-privacy, and thus that an increasingly digital world must therefore also be increasingly devoid of privacy. This paper argues briefly that since technology is a neutral tool, code can be designed as much to fight for privacy as against it, and that what matters now is to look at what incentivizes the creation of pro- rather than anti-privacy code in the mainstream …

The General Public License Version 3.0: Making Or Breaking The Foss Movement, Clark D. Asay

Michigan Telecommunications & Technology Law Review

Free and open source software (FOSS) is a big deal. FOSS has become an undeniably important element for businesses and the global economy in general, as companies increasingly use it internally and attempt to monetize it. Governments have even gotten into the act, as a recent study notes that FOSS plays a critical role in the US Department of Defense's systems. Others have pushed for the adoption of FOSS to help third-world countries develop. Given many of its technological and developmental advantages, FOSS's use, adoption, and development are only projected to grow.[...] The FSF created the most popular version of …

'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes

Michigan Telecommunications & Technology Law Review

The notion of software code replacing legal code as a mechanism to control human behavior--"code as law"--is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of "code as law" on privacy. To what extent is privacy-related "code" being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it …

Not All Bad: An Historical Perspective On Software Patents, Martin Campbell-Kelly

Michigan Telecommunications & Technology Law Review

This Paper places the current debates about software patents in the historical context of patenting in the information technology industries. The first computer-program products were sold in the mid 1960s when software patents were not generally allowed; as a result, trade secrecy became endemic to the software industry. Software products were also protected by copyright, but in practice this offered little protection against most forms of appropriation by reverse engineering or cloning. By the early 1980s a series of landmark cases led to the acceptance of software patents. It is argued that this development was consistent with the patenting of …

Information Privacy In Virtual Worlds: Identifying Unique Concerns Beyond The Online And Offline Worlds, Tal Z. Zarksy

NYLS Law Review

No abstract provided.

Sound And Fury Signifying Nothing?: Jurgen Bϋssow’S Battle Against Hate-Speech On The Internet, Eric T. Eberwine

NYLS Law Review

No abstract provided.

Computer Law By George S. Takach (Toronto: Irwin Law Inc., 2000, 2nd Edition), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Government Preferences For Promoting Open-Source Software: A Solution In Search Of A Problem, David S. Evans, Bernard J. Reddy

Michigan Telecommunications & Technology Law Review

Governments around the world are making or considering efforts to promote open-source software (typically produced by cooperatives of individuals) at the expense of proprietary software (generally sold by for-profit software developers). This article examines the economic basis for these kinds of government interventions in the market. It first provides some background on the software industry. The article discusses the industrial organization and performance of the proprietary software business and describes how the open-source movement produces and distributes software. It then surveys current government proposals and initiatives to support open-source software and examines whether there is a significant market failure that …

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.