Law Commons^™

Tinder Love And Care: Proposing An Industry Self-Regulation Policy Implementing Safety Procedures For Dating App Companies, Marissa Meredith

Indiana Law Journal

Online dating companies have monetized and capitalized on the idea of finding love, creating a billion-dollar industry matching individuals with their “soul mates.” With its perks and benefits, the online love industry is not without risk. Despite some dating companies limiting user eligibility in their terms and conditions to those without felony and sexual offense convictions, there is no actual screening process established by these companies. Furthermore, there are no uniform safety protocols among dating app companies. This lack of uniformity coupled with access to all, including violent offenders, allows repeat offenders to engage in “delightful” conversations with unsuspecting strangers …

Fair Warnings From Ofac’S Settlements With Cryptocurrency Service Providers: Compliance Should Include Lifetime-Of-The-Relationship, In-Process Geolocational Checks, Sarah Jane Hughes

Articles by Maurer Faculty

In 2022, the Office of Foreign Assets Control (OFAC) announced numerous settlements with cryptocurrency exchanges. These settlements serve as “fair warnings” to all cryptocurrency service providers who are “U.S. persons” or who offer services to U.S. persons. The term “U.S. persons” is defined in 31 C.F.R. §560.314 as “any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.”

This article focuses on these “fair warnings” as they have accumulated from prior settlements and from OFAC’s published guidance …

The Policy Origins Of Wi-Fi, John Blevins

Indiana Law Journal

Wi-Fi technology has become a necessary foundation of modern economic and cultural life. This Article explains its history. Specifically, it argues that Wi-Fi owes its existence and widespread adoption to federal policy choices that have been underexplored in the literature. Wi-Fi’s development is often portrayed as an unexpected and lucky accident following the FCC’s initial decision in the 1980s to allow more unlicensed and experimental uses. This view, however, obscures the more fundamental role that federal policy played. For one, the rise of modern Wi-Fi was the product of a series of policy decisions spanning decades. In addition, the FCC’s …

Collective Data Rights And Their Possible Abuse, Asaf Lubin

Articles by Maurer Faculty

No abstract provided.

The Law And Politics Of Ransomware, Asaf Lubin

Articles by Maurer Faculty

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between 20,000 and 30,000 per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims …

The Right To Privacy And Data Protection In Times Of Armed Conflict, Asaf Lubin, Russell Buchan

Books & Book Chapters by Maurer Faculty

Contemporary warfare yields a profound impact on the rights to privacy and data protection. Technological advances in the fields of electronic surveillance, predictive algorithms, big data analytics, user-generated evidence, artificial intelligence, cloud storage, facial recognition, and cryptography are redefining the scope, nature, and contours of military operations. Yet, international humanitarian law offers very few, if any, lex specialis rules for the lawful processing, analysis, dissemination, and retention of personal information. This edited anthology offers a pioneering account of the current and potential future application of digital rights in armed conflict.

In Part I Mary Ellen O’Connell, Tal Mimran and Yuval …

“The Virus Of Liberty”: John Perry Barlow, Internet Law, And Grateful Dead Studies, Joseph A. Tomain

Articles by Maurer Faculty

In 2019, the Duke Law and Technology Review published a special issue titled, "The Past and Future of the Internet: A Symposium for John Perry Barlow." This essay examines the legal scholarship in the Barlow symposium and frames it in the interdisciplinary terms of Grateful Dead studies. Part I focuses on the two Barlow essays that formed the basis of the symposium. Part II connects issues raised by the Barlow symposium to Grateful Dead studies. The essay concludes that Barlow's legacy should inspire others to engage both the cultural and political paths with “groundless hope,” because protecting the “inexplicable pleasures …

Indiana Law’S Lubin, Sun Help Advise Kosovo Government On Country’S Cybersecurity Act, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Maryland’S Digital Tax And The Itfa’S Catch-22, David Gamage, Darien Shanske, Christopher Moran

Articles by Maurer Faculty

In this installment of Academic Perspectives on SALT, the authors examine whether statelevel taxes on digital advertising — like Maryland’s new tax — are barred by the Internet Tax Freedom Act and discuss how the act’s prohibition against “discriminatory” taxes on electronic commerce should be construed narrowly.

What's The Harm? Federalism, The Separation Of Powers, And Standing In Data Breach Litigation, Grayson Wells

Indiana Law Journal

This Comment will argue that the Supreme Court should analyze standing in data breach litigation under a standard that is deferential to state statutory and common law. Specifically, federal standing analysis should look to state law when determining whether an injury is concrete such that the injury-in-fact requirement is met. Some argue that allowing more data breach cases to proceed to the merits could lead to an explosion of successful litigation and settlements, burdening the federal courts and causing economic losses for the breached businesses. These concerns may be valid. But if state law provides a remedy to the harm …

Public Policy And The Insurability Of Cyber Risk, Asaf Lubin

Articles by Maurer Faculty

In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Steve Middlebrook, Tom Kierner

Articles by Maurer Faculty

This survey year offered developments too numerous to cover, as often is the case. We debated which developments to include and decided to showcase different types of products and services, different providers, and different regulators. Part II views issues related to stimulus payments arising from the COVID-19 pandemic. Part III reports on litigation over whether retailers must offer gift cards printed in Braille. Part IV looks at recent actions of the Federal Trade Commission ("FTC") related to payment processors and others. Part V describes amendments to the "remittance" regulation promulgated by the Consumer Financial Protection Bureau ("CFPB"). Part VI focuses …

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist in the …

Internet Architecture And Disability, Blake Reid

Indiana Law Journal

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

Upskirting, Bitcoin, And Crime, Oh My: Judicial Resistance To Applying Old Laws To New Crimes – What Is A Legislature To Do?, Michael Whiteman

Indiana Law Journal

As technology continues to advance at a break-neck speed, legislatures often find themselves scrambling to write laws to keep up with these advances. Prosecutors are frequently faced with the prospect of charging a defendant with a crime based on an existing law that does not quite fit the circumstances of the defendant’s actions. Judges, cognizant of the fact that legislatures, and not the judiciary, have the primary responsibility for creating crimes, have pushed back. Judges routinely refuse to convict a defendant if the statute does not fairly criminalize the defendant’s actions. To determine if a defendant’s actions fit within a …

A Coffee Break For Bitcoin, Margaret Ryznar

Indiana Law Journal

For many, the appeal of bitcoin is in its detachment from government regulation. However, the Coffee bonding theory, which initially arose in the context of foreign stocks, suggests certain benefits of regulation for bitcoin, including increased legitimacy. By invoking the Coffee bonding theory, this Article offers another perspective on the regulation of bitcoin.

Do Blockchain Technologies Make Us Safer? Do Cryptocurrencies Necessarily Make Us Less Safe?, Sarah Jane Hughes

Articles by Maurer Faculty

This essay is based on a presentation made on January 24, 2020 at the invitation of the Texas Journal of International Law and the Strauss Center for National Security at the University of Texas. That presentation focused on the two questions mentioned in the title of this essay – Do Blockchain Technologies Make Us Safer? And Do Cryptocurrencies Necessarily Make Us Less Safe? The essay presents answers to the two questions: “yes” and “probably yes.” This essay begins with some level-setting on different types of blockchain technologies and of cryptocurrencies, and gives some background materials on global and national responses …

Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin

Articles by Maurer Faculty

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially …

Hacking For Intelligence Collection In The Fight Against Terrorism: Israeli, Comparative, And International Perspectives, Asaf Lubin

Articles by Maurer Faculty

תקציר בעברית: הניסיון של המחוקק הישראלי להביא להסדרה מפורשת של סמכויות השב״כ במרחב הקיברנטי משקף מגמה רחבה יותר הניכרת בעולם לעיגון בחקיקה ראשית של הוראות בדבר פעולות פצחנות מצד גופי ביון ומודיעין ורשויות אכיפת חוק למטרות איסוף מודיעין לשם סיכול עבירות חמורות, ובייחוד עבירות טרור אם בעבר היו פעולות מסוג אלה כפופות לנהלים פנימיים ומסווגים, הרי שהדרישה לשקיפות בעידן שלאחר גילויי אדוארד סנודן מחד והשימוש הנרחב בתקיפות מחשב לביצוע פעולות חיפוש וחקירה לסיכול טרור מאידך, מציפים כעת את הדרישה להסמכה מפורשת. במאמר זה אבקש למפות הן את השדה הטכנולוגי והן את השדה המשפטי בכל האמור בתקיפות מחשבים למטרות ריגול ומעקב. …

Defining Critical Infrastructure For A Global Application, Colleen M. Newbill

Indiana Journal of Global Legal Studies

A Google search for the phrase "critical infrastructure" turns up 189 million results in little more than a half second: ''global critical infrastructure" has 151 million results; and "definition of critical infrastructure" yields 71.5 million results. The list of what industries and sectors fall under the critical infrastructure designation expands as time progresses and technology develops. As the threat of cyberattacks increases and this frontier of terrorism continues to emerge, attacks on critical infrastructure are high on the list of concerns and the need for protective measures imperative. The focus on protecting critical infrastructure does not stop at the borders …

#Personaljurisdiction: A New Age Of Internet Contacts, Zoe Niesel

Indiana Law Journal

This Article explores the complicated relationship between minimum contacts and the modern internet. Part I traces the development of modern personal jurisdiction analyses in the areas of both specific and general jurisdiction. Interesting in this historical overview is the increased reliance on predictability, even as courts have recognized that advanced technologies and infrastructure have made the maintenance of lawsuits infinitely easier than in the days before International Shoe.7 Part II then explores the intersection between personal jurisdiction and the internet as well as the rise of the so-called Zippo “interactivity” test for jurisdiction in cases involving websites. Although Zippo has …

Data Protection In An Increasingly Globalized World, Nicholas F. Palmieri Iii

Indiana Law Journal

With the rise of the internet in recent decades, it has become increasingly easy for various enterprises—including retailers, advertising agencies, and service providers—to acquire, use, and even share the personal details of their users. Such a trend is unlikely to decrease in the coming years; in fact, internet usage is only likely to increase as more and more people gain access to the internet. In the wakeof recent data breaches, including the now infamous breach of Equifax as well as the scandal involving Facebook and Cambridge Analytica, people are even more aware of the need for (and the risk of …

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Cyber Law And Espionage Law As Communicating Vessels, Asaf Lubin

Books & Book Chapters by Maurer Faculty

Professor Lubin's contribution is "Cyber Law and Espionage Law as Communicating Vessels," pp. 203-225.

Existing legal literature would have us assume that espionage operations and “below-the-threshold” cyber operations are doctrinally distinct. Whereas one is subject to the scant, amorphous, and under-developed legal framework of espionage law, the other is subject to an emerging, ever-evolving body of legal rules, known cumulatively as cyber law. This dichotomy, however, is erroneous and misleading. In practice, espionage and cyber law function as communicating vessels, and so are better conceived as two elements of a complex system, Information Warfare (IW). This paper therefore first draws …

Cybersecurity And Tax Reform, Michael Hatfield

Indiana Law Journal

INTRODUCTION

I. THE PAST AND FUTURE OF THE IRS AS A CYBERATTACK TARGET

A. IRS AS A CYBERATTACK TARGET

B. THE FUTURE OF THE IRS AS A CYBERATTACK TARGET1. INFORMATION TECHNOLOGY

2. TAX INFORMATION

3. TYPES OF FUTURE ATTACKS

II. THE IRSWILL FAIL TO IMPLEMENT ADEQUATE CYBERSECURITY

A. VERY POOR HISTORY OF IMPROVING TECHNOLOGY

B. INADEQUATE FUNDING

C. INABILITY TO RECRUIT AND RETAIN EXPERTS

D. TOOMANY USERS

E. CYBERSECURITY IS DIFFICULT

III. BETTER DIGITAL TECHNOLOGY IS NOT THE GOAL

A. SLOWING THE USE OF DIGITAL TECHNOLOGY

B. CYBERSECURITY AND TAX REFORM

1. PAY-AS-YOU-EARN (PAYE)

2. SIMPLIFIED INCOME TAX

3. PURIFIED …

Too-Big-To-Fail 2.0? Digital Service Providers, Nizan Geslevich Packin

Indiana Law Journal

The Article explains why addressing Too-Big-To-Fail 2.0 has not yet become a political and societal priority. First, digital service providers are technology companies, which, many believe, are shaped by market forces such that they fail and succeed in equal measure without producing negative ripple effects on the economy or society. Second, technology giants are not as carefully regulated as banks becauseunlike banks, they do not take insured deposits backed by the government. Third, even heavily regulated financial institutions have not been required until recently to focus on cybersecurity. Finally, some believe that there is no point in worrying about Too-Big-To-Fail …

Typhoid Mario: Video Game Piracy As Viral Vector And National Security Threat, Andrew V. Moshirnia

Indiana Law Journal

Current academic and policy discussions regarding video game piracy focus on the economic losses inherent to copyright infringement. Unfortunately, this approach neglects the most significant implication of video game piracy: malware distribution. Copyright-motivated efforts to shut down file-sharing sites do little to reduce piracy and actually increase viral malware infection. Pirated video games are an ideal delivery device for malware, as users routinely launch unverified programs and forego virus detection. The illicit nature of the transaction forces users to rely almost entirely on the reputation of websites, uploaders, and other users to determine if a file is safe to download. …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Articles by Maurer Faculty

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

User-Friendly Taxpaying, Kathleen Delaney Thomas

Indiana Law Journal

Technology is revolutionizing our lives. With the touch of a button or a simple voice command, we can instantly order groceries, get directions, or find the nearest sushi restaurant. Sensibly, the private sector has capitalized on these recent innovations to drive up profits. To sell more laundry detergent, Amazon now enables consumers to order refills by simply pressing the “dash button” mounted above their laundry machines. Starbucks lures more customers by allowing them to pre-order online and have their drink waiting when they arrive at the store. The theory behind this approach is simple: if you want someone to use …