Law Commons^™

Cftc & Sec: The Wild West Of Cryptocurrency Regulation, Taylor Anne Moffett

Law Student Publications

Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

Cyberstalking: Holding Perpetrators Accountable And Providing Relief For Victims, Kara Powell

Law Student Publications

"After deciding to end the relationship, Tina carefully broke all ties with her ex-boyfriend. Then, the first blog post went live. The post was in Tina’s name, discussing her background as a business school graduate who worked in commodities at a bank and then transferred to real estate. The post took a dark turn as it went on to describe Tina as an escort and provided her phone number and address. As more blog posts went live, more people began harassing Tina by looking for an escort. Despite such harassment, Tina was looking for a new job. She received a …

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Law Faculty Publications

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct …

Protecting Privacy In The Era Of Smart Toys: Does Hello Barbie Have A Duty To Report, Corinne Moini

Law Student Publications

“‘Yay, you’re here!’ Barbie said eagerly. ‘This is so exciting. What’s your name?’…’I just know we’re going to be great friends.’” With a simple greeting, Hello Barbie has infiltrated your child’s life. Each time your child wishes to engage, they simply press on Barbie’s belt buckle and speak. Unlike other talking toys, the button on Barbie’s belt is not to play one of the pre-recorded statements that are installed in the toy. Instead, the button is used to record and transmit what your child says to an online storage cloud where it will be reviewed and used to create an …

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

Law Student Publications

This comment considers recent cases interpreting the Digital Millennium Copyright Act ("DMCA") and urges Congress to expand the protection of service providers through the DMCA safe harbors. The comment proceeds in six parts. Part I explains contributory and vicarious liability, the applicable sections of the DMCA to this comment, and the fair use doctrine. Part II provides a brief overview of video-sharing websites. It further observes the impact that video-sharing websites have had on digital media, focusing on the impact on the music industry. Part III looks at the recent cases interpreting the DMCA's red flag exception to safe harbor …

The Internet Is Not A Super Highway: Using Metaphors To Communicate Information And Communications Policy, Kristen Jakobsen Osenga

Law Faculty Publications

Do metaphors influence our information policy preferences? Professor Osenga thinks so, which makes it especially important to choose the right one, as a metaphor is often the primary tool the general public uses to understand information policy. Using a five-point rubric, she evaluates, among others, understanding the Internet as “tubes,” “highway,” “space (cyberspace),” “coffee shop/bar” and “cloud.” Osenga finds them all lacking in important ways. However, she believes the metaphor of the Internet as “ecosystem” is very promising and deserves to be further developed.

Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen

Law Student Publications

Even for those who are aware of the existence of advanced search and review tactics beyond keyword search, many questions remain for attorneys and judges alike. First, what are the new and emerging technologies? While courts and commentators mention the existence of the technologies, there is not much guidance with regard to what the new technologies are and what they accomplish. Second, are the new technologies superior to the manual review process? Understandably, attorneys are hesitant to use an unfamiliar e-discovery product that may not work better than the e-discovery process to which they are already accustomed. Third, if attorneys …

The Law Of Cyber-Attack, Rebecca Crootof, Oona A. Hathaway

Law Faculty Publications

Cyber-attacks have become increasingly common in recent years. Capable of shutting down nuclear centrifuges, air defense systems, and electrical grids, cyber-attacks pose a serious threat to national security. As a result, some have suggested that cyber-attacks should be treated as acts of war. Yet the attacks look little like the armed attacks that the law of war has traditionally regulated. This Article examines how existing law may be applied-and adapted and amended-to meet the distinctive challenge posed by cyber-attacks. It begins by clarifying what cyber-attacks are and how they already are regulated by existing bodies of law, including the law …

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Law Student Publications

This Comment explores how the law should handle such privacy claims. In analyzing both the photographic privacy claims as well as the Wi-Fi data privacy claims, this paper argues that current tort law is inadequate for such technologically advanced legal issues. Section II explores the background of Google Maps Street View and current privacy law, while Section III looks at the holes in current privacy torts in the context of the images displayed on Street View. Section IV examines the privacy implications surrounding the Wi-Fi scandal, and finally, Section V reviews the solution and provides a conclusion.

Making Virtual Copyright Work, Matthew R. Farley

Law Student Publications

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …

Time For An Upgrade: Amending The Federal Rules Of Evidence To Address The Challenges Of Electronically Stored Information In Civil Litigation, Jonathan L. Moore

Law Student Publications

In recent years, electronically stored information (ESI) has begun to play an increasingly important role in civil litigation. Although the e-discovery amendments to the Federal Rules of Civil Procedure in 2006 provided guidelines for the discovery of this information, no accompanying changes were made to the Federal Rules of Evidence to govern the admissibility of this information at trial. This article outlines the vastly different ways courts have addressed this problem in three areas: authentication, hearsay, and the best evidence rule. After discussing the various approaches courts take in these areas, this article proposes specific amendments to the Federal Rules …

The Business Fallout From The Rapid Obsolescence And Plannedobsolescence Of High-Tech Products: Downsizing Of Noncompetition Agreements, Ann C. Hodges, Porcher L. Taylor Iii

Law Faculty Publications

The recent rapid pace of technological change has made human capital more important, yet it has rendered the employee’s knowledge base obsolete more quickly. Employers use covenants not to compete, restricting employees from switching to work for competitors, in order to retain knowledgeable personnel. Currently, the lack of predictability in interpreting noncompete agreements allows employers to draft overly-lengthy noncompetes, encourages enforcement litigation, and curtails employees from changing jobs because of the fear of litigation. Employees should not be prevented from working for competitors for longer than is necessary to protect the employer’s legitimate interest. Use of obsolescence as a guide …

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Law Faculty Publications

The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and cyberspace is complicated by an overlay of constitutional law. While the rest of the world considers the policy implications of a country of origin versus a country of destination approach, the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause.

The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of …

The National Conference On Legal Information Issues: Selected Essays, Timothy L. Coggins

Law Faculty Publications

During the past decade, information technology developments have the dissemination and use of legal and legal-related In 1995, the American Association of Law Libraries, a organization with more than 5,000 members, convened the first "National Conference on Legal Information Issues" in conjunction with its eighty-eighth meeting. National Conference provided a forum for members of the legal and information communities to discuss the challenging problems and issues arising from the dynamic technological changes that have impacted the creation, dissemination and use of legal information. The National Conference assembled more than 2,500 librarians, law faculty and deans, judges court administrators, practicing attorneys …