Law Commons^™

Who Owns Data? Constitutional Division In Cyberspace, Dongsheng Zang

Articles

Privacy emerged as a concern as soon as the internet became commercial. In early 1995, Lawrence Lessig warned that the internet, though giving us extraordinary potential, was “not designed to protect individuals against this extraordinary potential for others to abuse.” The same technology can “destroy the very essence of what now defines individuality.” Lessig urged that “a constitutional balance will have to be drawn between these increasingly important interests in privacy, and the competing interest in collective security.” Lessig envisioned that creating property rights in data would help individuals by giving them control of their data. As utopian as property …

Anonymous Hacktivism: Flying The Flag Of Feminist Ethics For The Ukraine It Army, Ellen Cornelius

Homeland Security Publications

No abstract provided.

“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 …

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

Articles

In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

The Effect Of Globalization On The National Criminal Law Systems, Shirin Ahmadi Dastjerdi, Abbas Sheikholeslami, Haniyeh Hojabrosadati

Library Philosophy and Practice (e-journal)

Globalization has influenced many human life scopes with a variety of tools, which the cyberspace playing the most role. Although both cyberspace and globalization have had many benefits to human life, both as a tool and as a process, they have been able to assist offenders to bring crime into the cyberspace without any trouble. Therefore, today criminologists discuss the globalized world of crime. Although, the processes of homogenization and globalization have been precious to human beings, should not be overlooked. In this article, the author has tried to explain the cybercrime in the age of globalization, with an emphasis …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

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 …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Faculty Scholarship

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …

Strategic Law Avoidance Using The Internet: A Short History, Tim Wu

Faculty Scholarship

We are now some twenty years into the story of the Internet's bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry's excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry's article stands on its own, …

No. 9 - Cybersecurity And National Defense: Building A Public-Private Partnership, Rebecca H. White, C. Donald Johnson, Loch K. Johnson, Quentin E. Hodgson, Jamil Jaffer, Clete D. Johnson, Victoria Woodbine, Timothy L. Meyer, Adam Golodner, Barry Hensley, Andrea Matwyshyn, Jacob Olcott

Occasional Papers Series

Organized and sponsored by the Dean Rusk Center for International Law and Policy, Cybersecurity and National Defense: Building a Public-Private Partnership was a daylong conference exploring issues related to the national security dimensions of cyber attacks as well as the role of the private sector in addressing cybersecurity risks. The overarching theme was the scope of public-private collaboration in addressing cybersecurity risks and the potential for future cooperation between government and the private sector. Clete D. Johnson, Chief Counsel for Cybersecurity at the Federal Communications Commission gave a lunchtime address on the FCC’s approach to communications security in the Internet …

Addressing Cyber Harassment: An Overview Of Hate Crimes In Cyberspace, Danielle K. Citron

Faculty Scholarship

This short piece will take a step back and give an overhead view of the problem of cyber harassment and the destructive impact it can have on victims’ lives. Then, it will address about what the law can do to combat online harassment and how a legal agenda can be reconciled with the First Amendment. Finally, it will turn to recent changes in social media companies’ treatment of online abuse and what that might mean for our system of free expression.

Cybercrime, Ronald C. Griffin

Journal Publications

This essay recounts campaigns against privacy; the fortifications erected against them; and hi-jinx attributable to hackers, crackers, and miscreants under the Fair Credit Reporting Act.

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble

Scholarly Works

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location—a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of erecting borders in cyberspace, focuses on …

Public Forum 2.0, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article …

‘Customary Internet-Ional Law’: Creating A Body Of Customary Law For Cyberspace. Part 2: Applying Custom As Law To The Internet Infrastructure, Warren B. Chik

Research Collection Yong Pung How School Of Law

The shift in socio-economic transactions from real space to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective. In Part 2 of this article, I will construct the customary rules to Internet law-making that are applicable …

A Portrait Of The Internet As A Young Man, Ann Bartow

Law Faculty Scholarship

In brief, the core theory of Jonathan Zittrain’s1 2008 book The Future of the Internet - and How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be “We have to regulate the Internet to preserve its open, unregulated nature.” Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes …

'Customary Internet-Ional Law': Creating A Body Of Customary Law For Cyberspace. Part 1: Developing Rules For Transitioning Custom Into Law, Warren B. Chik

Research Collection Yong Pung How School Of Law

The shift in socio-economic transactions from realspace to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective. In Part 1, I will describe the socio-economic problems and stresses that electronic transactions place on existing policy and …

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous "John Doe" defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other nonfactual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Lidsky

Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In this survey, we review electronic contracting cases decided between June 15, 2008 and June 15, 2009. During that period we found that there was not much action on the formation by click-wrap and browse-wrap front. We have previously observed that the law of electronic contracts has matured, and the fact that there have not been any decisions on whether click-wrap and browse-wrap are effective ways of forming contracts reflects that observation. This year brought us three modification cases, two cases in which a party alleged that it was not bound to the offered terms because an unauthorized party agreed …

Privacy And The New Virtualism, Jonathon Penney

Articles, Book Chapters, & Popular Press

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Some Peer-To-Peer, Democratically And Voluntarily Produced Thoughts About 'The Wealth Of Networks: How Social Production Transforms Markets And Freedom,' By Yochai Benkler, Ann Bartow

Law Faculty Scholarship

In this review essay, Bartow concludes that The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler is a book well worth reading, but that Benkler still has a bit more work to do before his Grand Unifying Theory of Life, The Internet, and Everything is satisfactorily complete. It isn't enough to concede that the Internet won't benefit everyone. He needs to more thoroughly consider the ways in which the lives of poor people actually worsen when previously accessible information, goods and services are rendered less convenient or completely unattainable by their migration online. Additionally, the …

Cyberspace As/And Space, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all …

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …

Women In The Web Of Secondary Copyright Liability And Internet Filtering, Ann Bartow

Law Faculty Scholarship

This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem …

Trademark Law And The Social Construction Of Trust: Creating The Legal Framework For On-Line Identity, Beth Simone Noveck

Articles & Chapters

Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable, and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an online avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new "social software" technology that enables communities from eBay to …

Society’S Software, Beth Simone Noveck, David R. Johnson

Articles & Chapters

No abstract provided.