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Articles 1 - 16 of 16
Full-Text Articles in Law
Race And Rights In The Digital Age, Catherine Powell
Race And Rights In The Digital Age, Catherine Powell
Faculty Scholarship
No abstract provided.
Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain
Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain
Faculty Scholarship
Over the course of the past decade or so, attention among Internet policymakers and scholars has shifted gradually from substantive design principles to the structure of Internet governance. The Internet Corporation for Assigning Names and Numbers in particular now faces a new skepticism about its legitimacy to administer the essential Internet Assigned Numbers Authority function. ICANN has responded to these doubts by proposing a series of major governance reforms that would bring nation-states more into the organization's decisionmaking. After all, transnational governance institutions in other substantive areas privilege nation-states as a matter of course. This Symposium Essay shows that these …
Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub
Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub
Faculty Scholarship
Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …
Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra
Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra
Faculty Scholarship
The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of …
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain
Faculty Scholarship
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
States And Internet Enforcement, Joel R. Reidenberg
States And Internet Enforcement, Joel R. Reidenberg
Faculty Scholarship
This essay addresses the enforcement of decisions through internet instruments. The starting point is a brief justification of internet enforcement as the obligation of democratic states. Next, the essay argues that the movement to re-engineer the internet infrastructure by public and private actions also facilitates state enforcement of legal and policy decisions. The essay maintains that states will increasingly try to use network intermediaries such as payment systems and Internet Service Providers as enforcement instruments. Finally, and most importantly, the essay focuses on ways that states may harness the power of technological instruments such as worms, filters and packet interceptors …
Privacy Wrongs In Search Of Remedies, Joel R. Reidenberg
Privacy Wrongs In Search Of Remedies, Joel R. Reidenberg
Faculty Scholarship
The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. It explores public enforcement of, …
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
Faculty Scholarship
For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Faculty Scholarship
This article examines the French court order requiring Yahoo to prevent French Internet users from accessing images of Nazi memorabilia available for auction on the company's American web site. The article uses the French case to challenge the popular belief that an entirely borderless Internet favors democratic values. The article starts from the premise that while the Internet enables actors to reach a geographically dispersed audience, the Internet should not change the accountability of those actors for their conduct within national borders. The article shows that Yahoo's extensive business in France justifies the application of France's democratically chosen law and …
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Faculty Scholarship
While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …
Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg
Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg
Faculty Scholarship
In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg
Faculty Scholarship
Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of …
Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg
Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg
Faculty Scholarship
The global network environment defies traditional regulatory theories and policymaking practices. At present, policymakers and private sector organizations are searching for appropriate regulatory strategies to encourage and channel the global information infrastructure (“GII”). Most attempts to define new rules for the development of the GII rely on disintegrating concepts of territory and sector, while ignoring the new network and technological borders that transcend national boundaries. The GII creates new models and sources for rules. Policy leadership requires a fresh approach to the governance of global networks. Instead of foundering on old concepts, the GII requires a new paradigm for governance …
Setting Standards For Fair Information Practice In The U.S. Private Sector, Joel R. Reidenberg
Setting Standards For Fair Information Practice In The U.S. Private Sector, Joel R. Reidenberg
Faculty Scholarship
The confluence of plans for an Information Superhighway, actual industry self-regulatory practices, and international pressure dictate renewed consideration of standard setting for fair information practices in the U.S. private sector. The legal rules, industry norms, and business practices that regulate the treatment of personal information in the United States are organized in a wide and dispersed manner. This Article analyzes how these standards are established in the U.S. private sector. Part I argues that the U.S. standards derive from the influence of American political philosophy on legal rule making and a preference for dispersed sources of information standards. Part II …
Rules Of The Road For Global Electronic Highways: Merging The Trade And Technical Paradigms, Joel R. Reidenberg
Rules Of The Road For Global Electronic Highways: Merging The Trade And Technical Paradigms, Joel R. Reidenberg
Faculty Scholarship
International efforts to define fair information practices for global networks derive from two distinct paradigms. Traditionally, regulatory standards have been cast in trade terms. The trade perspective seeks to promote free flows of information and define standards that balance free flows against human rights values. Fair information practices also draw on another rarely emphasized technical paradigm. This approach seeks to eliminate any technological obstacles to free flows of information by defining standards for system integrity and interoperability. Nevertheless, these technical standards are set in ways that also define fair information practices. While each paradigm provides a basis to establish rules …