Law Commons^™

The Fight To Save America's Inbox: State Legislation And Litigation In The Wake Of Can-Spam, Emma Scanlan

Washington Journal of Law, Technology & Arts

The fight to curb the ever-increasing amount of unsolicited commercial email or “spam” showing up in the inboxes of American businesses has generated both state and federal legislation. The CAN-SPAM Act of 2003 was enacted to create a bright-line between spam and legal commercial email. The Act preempted many state spam laws but also left significant enforcement abilities to the individual states. States that elect to create large civil damages for spam without criminalizing the transmission of unsolicited commercial email run the risk of winning cases where the damage awards are largely unenforceable and not effective deterrents to big-time spammers. …

Coddling Spies: Why The Law Doesn’T Adequately Address Computer Spyware, Alan F. Blakley, Daniel B. Garrie, Matthew J. Armstrong

Duke Law & Technology Review

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another's computer to report a user's activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual's identity. Existing law does not address spyware adequately because authorization language, buried in "click-through" boilerplate, renders much of current law useless. …

Buggy Whips And Broadcast Flags: The Need For A New Politics Of Expression, Garrett Levin

Duke Law & Technology Review

In response to growing fears from the entertainment industry over online file-sharing of valuable content, the Federal Communications Commission ("FCC") enacted sweeping regulations over the production of electronic devices in the name of protecting digital television broadcasts. Although the FCC's "broadcast flag" regulation was struck down on jurisdictional grounds, Hollywood has not given up the push for strict control. If Hollywood successfully acquires broadcast flag protection there could be far-reaching implications for innovation and development of new digital technologies. While content providers have important reasons to protect copyrighted material, there is too much at stake to merely acquiesce to their …

Liability Under The Americans With Disabilities Act For Private Web Site Operators, Evgenia Fkiaras

Washington Journal of Law, Technology & Arts

The Americans with Disabilities Act of 1990 (“ADA”) is silent on the specific question of whether privately owned websites fall within its provisions. There is a circuit split on the issue, although the only case directly on point makes mandatory website compliance the exception rather than the rule. Nevertheless, given the direction that the law will probably head and the relative ease of making websites accessible to the group most in need—those who require the use of assistive technologies—it behooves businesses to construct or alter their websites to accommodate these individuals.

Who Owns The Cow When We Give Away The Milk For Free? Fair Use And The Protection Of Web-Posted Materials, Annie R. Lin

Buffalo Intellectual Property Law Journal

No abstract provided.

A Shadow Government: Private Regulation, Free Speech, And Lessons From The Sinclair Blogstorm, Marvin Ammori

Michigan Telecommunications & Technology Law Review

Because of the economics of online information, thousands who do not know each other can band together in hours, without previous organizational coordination or any persistent central coordination, to affect others and conform society to their idea of the social good. This changes the dynamic of political action and the ability of unaffiliated, lone individuals to respond to social acts where government and the market have not. Through ad hoc volunteerism, the Sinclair participants produced regulatory action against a private party with whom they were not transacting--because they believed government failed to do so. Although ad hoc volunteerism has received …

'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 …

When Big Brother Privatizes: Commercial Surveillance, The Privacy Act Of 1974, And The Future Of Rfid, John M. Eden

Duke Law & Technology Review

RFID is a powerful new technology that has the potential to allow commercial retailers to undermine individual control over private information. Despite the potential of RFID to undermine personal control over such information, the federal government has not enacted a set of practicable standards to ensure that personal data does not become widely misused by commercial entities. Although some potential privacy abuses could be addressed by modifying RFID technology, this iBrief argues that it would be wise to amend the Privacy Act of 1974 so that corporations would have a statutory obligation to preserve individual anonymity and respect the privacy …

The World Summit On The Information Society: Making The Case For Private Industry Filtering To Control Extraterritorial Jurisdiction And Transnational Internet Censorship Conflicts, Jay Wahlquist

Brigham Young University International Law & Management Review

No abstract provided.

The Eu Data Protection Directive: Implementing A Worldwide Data Protection Regime And How The U.S. Position Has Progressed, Seth P. Hobby

Brigham Young University International Law & Management Review

No abstract provided.

Unmasking The John Does Of Cyberspace: Surveillance By Private Copyright Owners, Amy Min-Chee Fong

Canadian Journal of Law and Technology

The goals of this paper are to: (1) explore the expectations of cyberspace privacy in a peer-to-peer context; (2) examine the consequences to Internet users arising from the surveillance tactics of private copyright owners; and (3) discuss possible ways in which a balance can be achieved between privacy and intellectual property rights. Part II of this paper sets out the meaning of information privacy, discusses the widespread use of peer-to-peer networks for trading copyrighted content, and examines the expectations of privacy in peer-to-peer networks. Part III discusses the surveillance tactics of private copyright owners, and explains how the surveillance of …

What The Dormouse Said: How The Sixties Counterculture Shaped The Personal Computer By John Markoff (New York: Penguin, 2005), Vaughan Black

Canadian Journal of Law and Technology

What the Dormouse Said is the revisionary back- story of Silicon Valley; in particular, the roots of the current model of human interface with personal com- puters (video screen, keyboard, mouse) and the early stabs at creating the Internet. Markoff is a long-standing hi-tech reporter for the New York Times who, over the past 20 years, has co-written three computer-related books. In Dormouse, his fourth book (but first solo effort), he takes us back to the pre-ironic age — ‘‘the Flintstones era of computers’’ — when batch processing and beatniks still roamed the earth. His claim is that the various …

The Role Of Levies In Canada's Digital Music Marketplace, Jeremy F. Debeer

Canadian Journal of Law and Technology

This paper considers whether such initiatives are a desirable alternative to the current system of exclusive proprietary copyrights. My goal is not to evaluate the nuances of any particular levy scheme or proposal, but to consider the implications of the concept from a specifically Canadian perspective. Despite the generality of the analysis, many of the observations and conclusions about the viability of levy schemes relate to Canada’s actual experiences with its existing private copying levy.

The paper concludes that tariffs or levies on the products and services of third parties are not the best method to support the Canadian music …

Cryptography Export Controls - Canada's Dichotomous Cryptography Policy, Paul Bates

Canadian Journal of Law and Technology

The effort to erect strong legal barriers to trans-national distribution of cryptography has significant gaps because strong cryptography can be obtained and used within Canada without legal restrictions. This paper advocates that Canada should exercise its discretion under the WA to diminish, not fortify, the restrictions of the export control regime.

China’S Wapi Policy: Security Measure Or Trade Protectionism?, Zia K. Cromer

Duke Law & Technology Review

In December of 2003, the Chinese government announced that all WLAN equipment sold in China must conform to a propriety standard called WAPI, rather than the internationally accepted Wi-Fi standard. Moreover, for foreign firms to gain access to WAPI technology, they would need to partner with one of two-dozen Chinese firms designated by the Chinese government. The policy ostensibly grew out of security concerns regarding Wi-Fi, although it is unclear whether WAPI is more secure. Beijing has now indefinitely postponed the implementation of this policy, but WAPI is still relevant. This iBrief argues that WAPI is illustrative of many Chinese …

Search Engines And Internet Advertisers: Just One Click Away From Trademark Infringement?, Lauren Troxclair

Washington and Lee Law Review

No abstract provided.

The Sps Agreement: Can It Regulate Trade In Nanotechnology?, James D. Thayer

Duke Law & Technology Review

Recent studies have shown that nanoparticles, which are approximately 1 to 100 billionths of a meter in size, present unique health and environmental risks. Nevertheless, products enhanced by nanoparticles, such as sunscreen, golf balls, and hard drives, are shipped daily in international trade. With these unique risks in mind, would measures regulating the trade in nanotechnology be subject to the WTO Agreement on Sanitary and Phytosanitary Measures? If they were, would the Agreement objectively balance the unique risks and benefits of trading in nanotechnology? Whether measures regulating the trade in nanotechnology are subject to the SPS Agreement depends on the …

Stop The Abuse Of Gmail!, Grant Yang

Duke Law & Technology Review

Gmail, a highly anticipated webmail application made by Google, has been criticized by privacy advocates for breaching wiretapping laws, even before its release from beta testing. Gmail's large storage space and automated processes developed to scan the content of incoming messages and create advertisements based on the scanned terms have enraged privacy groups on an international level. This iBrief will compare Gmail's practices with its peers and conclude that its practices and procedures are consistent with the standards of the webmail industry. The iBrief will then propose additional measures Gmail could institute to further protect webmail users' and alleviate the …

China's Media: The Impact Of The Internet, Richard Cullen, D. W. Choy

San Diego International Law Journal

[T]his paper provides a review of how the use of the Internet has grown and been regulated in China. We then draw some conclusions on what the experience to date may have to tell us about future regulatory and usage patterns with respect to the Internet in China.

Digital Crossroads, Kathleen Wallman

Federal Communications Law Journal

Book Review: Digital Crossroads: American Telecommunications Policy in the Internet Age, Jonathan E. Nuechterlein & Philip J. Weiser, Cambridge, Mass., MIT Press, 2005, 670 pages.

A review of Digital Crossroads: American Telecommunications Policy in the Internet Age, by Jonathan E. Nuechterlein and Philip J. Weiser, MIT Press, 2005. Most practitioners of communications law are familiar with the necessity of teaching themselves enough economics, engineering, and politics to practice competently and comfortably in an area that is inherently interdisciplinary. Likewise, many professors who teach telecommunications from a variety of disciplinary perspectives are familiar with the frustration of locating a text that …

Looking Beyond The Digital Divide, Yolanda D. Edwards

Federal Communications Law Journal

Book Review: Digital Nation: Toward an Inclusive Information Society, Anthony G. Wilhelm, Cambridge, Mass., MIT Press, 2004, 184 pages.

A review of Anthony G. Wilhelm's Digital Nation: Toward an Inclusive Information Society, MIT Press, 2004. An important attempt to frame the debate about the importance of technological literacy, this book explores world-wide successes and failures to bring technology to the masses and provides a plan to accomplish it in the United States.

Where The Netcom Yardstick Comes Up Short: Courts Should Not Apply The Facts Of Netcom As An Example Of Intermediate And Transient Storage Under § 512(A) Of The Dmca, Sean Croman

Washington Law Review

Internet Service Providers (ISPs) risk substantial liability for passively contributing to subscriber-initiated acts of online copyright infringement. Cognizant of this problem, courts and Congress have taken differing approaches to limiting ISP liability. The Netcom court established that ISPs could store infringing material for eleven days without incurring liability for direct infringement, but did not similarly rule out liability for other forms of infringement. The Digital Millennium Copyright Act (DMCA) subsequently advanced the law of copyright by strengthening the protections enjoyed by copyright holders whose works face exploitation online, subject to four activity-specific "safe harbor" limitations on liability. For example, § …

Discriminatory Filtering: Cipa's Effect On Our Nation's Youth And Why The Supreme Court Erred In Upholding The Constitutionality Of The Children's Internet Protection Act, Katherine A. Miltner

Federal Communications Law Journal

Congress introduced the Children's Internet Protection Act ("CIPA") in order to filter obscene and indecent material in response to a perceived threat to members of the public, specifically minors, who are exposed to pornographic material on the Internet. The provisions of CIPA have provoked tension between two competing interests: protecting minors from cyberpornography, and safeguarding First Amendment rights. This Note argues that the Supreme Court erred by upholding the constitutionality of CIPA. As a result of the Supreme Court's decision, the nation's youth will have restricted access to constitutionally protected information. The Court improperly relied on a provision of the …

Rebooting Cybertort Law, Michael L. Rustad, Thomas H. Koenig

Washington Law Review

Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in § 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of care on ISPs to remove or block ongoing tortious activities on their services when they have been given actual notice. This reform will harmonize American ISP liability law …

The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?, Robert Bray

Duke Law & Technology Review

This paper has been adapted from a presentation given by the author at Duke University School of Law's "Hot Topics in Intellectual Property Law Symposium" on April 1, 2005. It first presents an overview of the EU "Software Patents" Directive and many of the amendments that have been proposed and adopted. It then suggests a number of ways in which Europe can lead the world in developing a system that balances the interests of patent protection and open-source software.

Regulating Indecency: The Federal Communication Commission’S Threat To The First Amendment, Reed Hundt

Duke Law & Technology Review

This paper is adapted from a talk given by the author at Duke University School of Law on April 6, 2005. The author argues that the Federal Communication Commission's recent crackdown on television indecency poses a significant threat to First Amendment protections by (1) limiting television viewers' freedom of choice and (2) implying the possibility of punishment for failure to cooperate with the political objectives of the governing party.

To Surf And Protect: The Children's Internet Protection Act Policies Material Harmful To Minors And A Whole Lot More, Michael B. Cassidy

Michigan Telecommunications & Technology Law Review

This Note will examine the constitutional issues raised by installing Internet filtering software in public libraries. Part I explores the First Amendment, the standard of review for restricting Internet material, and the government's role in protecting minors and regulating speech. Part II discusses library patrons' First Amendment rights in public libraries. Part III provides the statutory framework of the E-rate and LSTA programs, as well as the Children's Internet Protection Act (CIPA). Part IV examines the effectiveness of current Internet filtering technology and provides the American Library Association's policies on Internet filtering in public libraries. Part V discusses the district …

Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo

Michigan Telecommunications & Technology Law Review

We present a thorough analysis of one of the ADR regimes that is considered a significant success in Internet markets, the Uniform Dispute Resolution Policy (UDRP) implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). In this work, we perform a complete empirical analysis of the UDRP and evaluate its performance. We then extrapolate the results to other sectors of the Internet market and to private dispute resolution in general.[...] In this paper, we thoroughly critique the performance of the UDRP providers and identify the main variables that determine ICANN's efficiency. For example, one of the key variables, …

Rising Governmental Use Of Biometric Technology: An Analysis Of The United States Visitor And Immigrant Status Indicator Technology Program, Lisa Madelon Campbell

Canadian Journal of Law and Technology

This article explores increased governmental interest in the use of biometric measurements as a means of identifying individuals and tracing their movements. Private industries, of course, are equally interested in biometrics, and often similarly capable of collecting and storing biometric information. For example, merchants in the United Kingdom require customers who pay by cheque to provide a thumbprint as an additional security measure against potential fraud. The issues raised by the use of biometrics in the private sector are somewhat different than those that arise in the public context. This article explores the increased reli- ance upon individual biometric measurements …

I Click, You Click, We All Click - But Do We Have A Contract? A Case Comment On Aspenceri.Com V. Paysystems, Charles Morgan

Canadian Journal of Law and Technology

It is trite to say that e-commerce has exploded over the last several years. Canadian individuals and businesses are entering into thousands and thousands of contracts online all the time. Yet, oddly enough, there is surprisingly little legal certainty or consistency regarding an essential legal question: what approach to online contract formation will create a binding legal contract? Such legal uncertainty is unfortunate, since buyers need to know when to ‘‘beware’’, merchants need to be able to manage risk, and courts need to have clear guidelines in order to be able to render informed, coherent decisions.

The issue of online …