Law Commons^™

Border Searches Of Laptop Computers After United States V. Arnold: Implications For Traveling Professionals, Cooper Offenbecher

Washington Journal of Law, Technology & Arts

The Ninth Circuit Court of Appeals recently held that border searches of laptop computers do not require reasonable suspicion. The decision, in United States v. Arnold, reflects the continued intent of the Ninth Circuit—along with the Fourth Circuit Court of Appeals—to continue analyzing laptop computer searches under the traditional border search doctrine. This article will examine recent laptop computer search cases in light of the border search doctrine and will consider the implications for lawyers and business professionals who travel abroad with confidential information on laptops and other electronic-storage devices. The article will also consider the implications of such …

Liability For Search Engine Triggering Of Trademarked Keywords After Rescuecom, Riana Pfefferkorn

Washington Journal of Law, Technology & Arts

“Trademark keying” is the practice of buying and selling trademarked terms as keywords in search engine advertising campaigns. In September 2006, a federal district court in Rescuecom Corp. v. Google, Inc. held that the practice does not constitute trademark use, a threshold criterion in a trademark infringement claim. Since Rescuecom, the focus of trademark keying litigation has shifted, giving some guidance to potential litigants. In addition, the U.S. Court of Appeals for the Second Circuit has diverged from other circuits. While federal courts within the Second Circuit have fashioned the emerging rule that an advertiser’s internal use of trademarked …

De-Identified Data And Third Party Data Mining: The Risk Of Re-Identification Of Personal Information, C. Christine Porter

Washington Journal of Law, Technology & Arts

Recent computer science research demonstrates that anonymized data can sometimes be easily re-identified with particular individuals, despite companies’ attempts to isolate personal information. Netflix and AOL are two examples of companies that released personal data intended to be anonymous but which was reidentified with individual users with the use of very small amounts of auxiliary data. Re-identification of anonymized data may expose companies to increased liability, as the information may no longer be treated as anonymous. In addition, companies may violate their own privacy policies by releasing anonymous information to third parties that can be easily re-identified with individual users. …

Does The U.S. Safe Web Act Strike The Proper Balance Between Law Enforcement Interests And Privacy Interests?, Shaobin Zhu

Washington Journal of Law, Technology & Arts

The Internet and advances in telecommunications technology present unprecedented opportunities for cross-border fraud and deception directed at U.S. consumers and businesses. However, the Federal Trade Commission’s (“FTC”) ability to obtain effective relief may face practical impediments in prosecuting these cross-border wrongdoers. To help address the challenges posed by the globalization of fraud, President Bush signed the Undertaking Spam, Spyware and Fraud Enforcement With Enforcers Beyond Borders Act of 2006 (“U.S. SAFE WEB Act” or “Act”) into law on December 22, 2006. This Article discusses the FTC’s expanded enforcement authority granted by the Act to fight fraud and deception, and particularly …

Ethical Considerations For Blog-Related Discovery, Jason Boulette, Tanya Dement

Washington Journal of Law, Technology & Arts

The rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that run the gambit of subjects from politics to sports to literature to personal materials. The exponential rise in blogging stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of …

Whole Foods, Unwholesome Practices: Will Sock Puppeteers Be Held Accountable For Pseudonymous Web Postings?, Chelsea Peters

Washington Journal of Law, Technology & Arts

The Federal Trade Commission recently exposed Whole Foods’ CEO John Mackey for having made pseudonymous posts on financial message boards for over seven years. Mackey’s practice of “sock puppeting,” or posting under a false identity to praise and build support for one’s company, is becoming more common among high-powered corporate executives who have few other outlets in which to vent their frustrations and spar with their critics. In July, the SEC began an informal investigation into Mackey’s posts. This article examines the liabilities sock puppeteers may face under current securities regulations, particularly § 10b-5 of the Securities Exchange Act of …

Reading Too Much Into What The Court Doesn't Write: How Some Federal Courts Have Limited Title Vii's Participation Clause's Protections After Clark County School District V. Breeden, Lawrence D. Rosenthal

Washington Law Review

In 2001, the Supreme Court issued its opinion in Clark County School District v. Breeden, in which it refused to determine what a plaintiff must prove to demonstrate that she engaged in “protected activity” under Title VII’s anti-retaliation provision’s opposition clause. Although the Court declined to answer this question, courts have interpreted Breeden as requiring an opposition-clause plaintiff to prove a good-faith, objectively reasonable belief of an unlawful employment practice. Although Breeden involved Title VII’s opposition clause, some courts are now applying Breeden to cases involving Title VII’s participation clause. This is baffling for two reasons. First, Breeden involved …

It's Not Too Late: Applying Continuing Violation Theory To The Designation Of Critical Habitat Under The Esa, Amelia Boone

Washington Law Review

The Endangered Species Act (ESA or the Act) requires the United States Fish and Wildlife Service (the Service) to designate critical habitat for every species it lists as threatened or endangered. Generally, the Service must designate critical habitat within one year of listing the species. If it cannot determine the species’ habitat at the moment of listing, it can issue a finding of “not determinable,” which gives it one additional year to study the species and its habitat needs. At the end of that additional year, the Service must list the critical habitat, using whatever data is available. On close …

Preface, William H. Rodgers Jr.

Chapters in Books

In the 2006-07 term, the U.S. Supreme Court gave us a flood of new thought on the topic of environmental law.

Too bad.

[Addresses cases interpreting the Clean Water Act, the Superfund law, the Clean Air Act, and the Endangered Species Act. In the Summer 2008 Pocket Part for Volume 1.]

"Pollute First, Control Later" No More: Combating Environmental Degradation In China Through An Approach Based In Public Interest Litigation And Public Participation, Christine J. Lee

Washington International Law Journal

As China continues to face severe environmental degradation as a side effect of torrid economic growth and rise in population, the Chinese government has promulgated numerous environmental laws over the past few decades to address this critical issue. The efficacy of these laws, however, has been highly questionable. Although the laws themselves—modeled substantially on United States and European environmental laws—are relatively complete and comprehensive, difficulties in implementation and particularly enforcement have led to the continued deterioration of China’s environment. These failures in implementation and enforcement of environmental laws emerge from numerous factors, most notably from the decentralized structure of China’s …

The End Of The Viarsa Saga And The Legality Of Australia's Vessel Forefeiture Penalty For Illegal Fishing In Its Exclusive Economic Zone, Laurence Blakely

Washington International Law Journal

The world’s fish stocks are suffering from over-utilization. The earth’s oceans are subject to exploitation by all nation states and very little preservation. Because of the nature of the international legal regime of the Law of the Sea, enforcement of what conservation and management measures exist is challenging. Boundaries, ephemeral on land, are even more so on water, making rights allocation and management particularly difficult. Nevertheless, as fish stocks continue to decrease and it becomes clearer that oceans require more effective management, coastal states have begun to undertake more significant enforcement procedures corresponding to their rights in their exclusive economic …

The Need For Effective Licensure Laws For Mid-Level Health Care Providers In Countries Facing Chronic Physician Shortages: A Case Study Of The Marshall Islands' Health Assistants, Jeffrey P. Lane

Washington International Law Journal

Facing a global physician shortage and high international emigration rates, developing countries are increasingly looking to mid-level health care providers to provide critical primary health care services. Mid-level providers have more training than nurses but less than full physicians and are typically authorized to prescribe medications and perform simple medical procedures. As the demand for health care providers continues to grow, mid-level providers are increasingly being asked to provide a broader array of clinical services. In response to this growing need, mid-level providers are increasingly practicing outside of their licensed scope of practice, which may both compromise patient safety and …

Protecting Egg Donors And Human Embryos—The Failure Of The South Korean Bioethics And Biosafety Act, Mukta Jhalani

Washington International Law Journal

Human embryonic stem cells have the potential to treat many physical and neurological disorders due to their unique ability to transform into any type of human cell. The process of deriving stem cells from human embryos, however, raises important ethical and regulatory issues. Embryonic stem cell research requires a steady source of human eggs to create embryos that are destroyed during stem cell extraction. International declarations and guidelines protect the two most vulnerable participants of embryonic stem cell research: women who donate eggs for research purposes and human embryos that are destroyed in the research. In 2005, South Korea passed …

Korean Divorce Law On Claims For Property Division: Dividing Retirement Allowance In Divorce, Faye Y. Park

Washington International Law Journal

As South Koreans divorce closer to the retirement age, the issue of whether retirement allowance should be divided upon divorce has become more prevalent. The applicable law in the division of the retirement allowance in a divorce is Article 839-2 of the Civil Code. This article provides that property realized through the cooperation of both spouses shall be divided in divorce by agreement. The Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances pose problems because a spouse can contribute in acquiring them …

Japan And The Moneylenders—Activist Courts And Substantive Justice, Andrew M. Pardieck

Washington International Law Journal

Problems with sub-prime loans roiled financial markets worldwide in 2007 and brought renewed attention to predatory lending practices by loan brokers in the United States. Questionable lending practices, however, plague consumer financial markets worldwide, including one of the largest, found in Japan. This Article addresses the Japanese response to systemic problems in its consumer finance market. Over the last forty years, the judiciary has led and the Diet followed. Most recently, in 2006, the Supreme Court handed down a series of decisions that turned the single most important earnings driver for the consumer finance industry into dead letter law. The …

As A Negative Right, Article 25 Can Have A Positive Effect Combating Japan's Poverty, Amelia S. Kegan

Washington International Law Journal

Article 25 of the Showa Constitution guarantees everyone in Japan a minimum standard of “wholesome and cultured living.” Contrary to the force originally envisioned by the Constitution’s framers, the Supreme Court of Japan has interpreted the provision as merely a programmatic declaration that guides the legislature rather than as an enforceable right under which an individual may sue. As a result, individuals cannot seek relief from the judiciary for Article 25 violations. The Supreme Court should recognize Article 25 also as a negative, concrete right, allowing individuals to seek judicial relief when the government fails to appropriately apply laws intended …

Access To Justice For The Poor: The Singapore Judiciary At Work, Gary Chan Kok Yew

Washington International Law Journal

This Article examines the concrete efforts and programs of the Singapore judiciary to maintain and enhance access to justice for the poor. This examination is undertaken via overlapping economic, procedural, and institutional approaches. The Article will examine three main contentions. First, that the Singapore judiciary’s concrete efforts in maintaining and promoting access to justice for the poor have been fairly comprehensive and pro-active. Second, that abstract constitutional discourse on the right of access to justice and the associated rights of legal representation and legal aid are virtually absent in Singapore. Thus, the judicial practice for enhancing access to justice for …

Liability For Consumer Information Security Breaches: Deconstructing Ftc Complaints And Settlements, Joel B. Hanson

Washington Journal of Law, Technology & Arts

For several years, hackers taking advantage of security holes in the information system of TJX Companies, Inc. stole sensitive credit and debit card information belonging to at least 45.7 million customers. The TJX breach is one of the largest thefts of consumer information in history and is illustrative of the recent wave of security breaches. Private lawsuits against companies that fail to protect consumer information have typically failed. However, the Federal Trade Commission has taken enforcement action against such companies that fail to implement reasonable security measures to protect customers’ personal information. These complaints have resulted in settlement agreements requiring …

No Harm, No Foul: Limits On Damages Awards For Individuals Subject To A Data Breach, Derek A. Bishop

Washington Journal of Law, Technology & Arts

Recently, TJX, Inc. announced that computer hackers breached several of TJX’s databases containing the driver’s license and credit card numbers of over 47 million customers. Within a month, a class action lawsuit attempting to hold TJX responsible for losing control of this information was filed. In the past, class action lawsuits based on the release of consumer’s personal data have failed because the plaintiffs have not alleged sufficient harms. This article examines legal claims relating to the release of personal data by companies during security breaches. To date, courts have refused to find individuals harmed by the negligent release of …

To Mine Or Not To Mine: Recent Developments In The Legal Ethics Debate Regarding Metadata, Boris Reznikov

Washington Journal of Law, Technology & Arts

The American Bar Association recently decided that attorneys are not violating the Model Rules of Professional Conduct by reviewing opposing parties’ electronic documents for metadata. The stance taken by the American Bar Association contradicts views from ethics committees in other jurisdictions that have determined that lawyers who examine metadata are acting unethically. This Article summarizes the American Bar Association’s decision, as well as the other opinions on metadata, to help practicing attorneys understand the proper ethical considerations they must make when determining whether to look into an electronic document’s metadata.

Forceful Minimization, Hein V. Freedom From Religion Foundation, Inc., And The Prudence Of "Not Doing", Brendan R. Mcnamara

Washington Law Review

Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds …

Transitioning The Family Business, Dwight Drake

Washington Law Review

By any measure, family-dominated businesses are the backbone of the American economy. Although a large majority of family businesses are managed by senior family members who are older than age 55 and more than 80 percent of such senior family members claim that they want the business to remain in the family, less than 30 percent of such businesses have tackled the challenge of developing a plan for transitioning the business to the next generation. For over 90 percent of such families, this planning challenge is aggravated by the fact that they have no diversified wealth: the family’s wealth is …

Bypassing Redundancy: Resolving The Jurisdictional Dilemma Under The Defense Base Act, Claire Been

Washington Law Review

In 1941, Congress passed the Defense Base Act (DBA) to provide workers’ compensation coverage to civilian workers employed overseas under U.S. government contracts or on U.S. military bases. Congress modeled the DBA after the Longshore and Harbor Workers’ Compensation Act (Longshore Act), modifying certain provisions to provide for accidents that occur overseas. In 1972, Congress amended the procedures governing review of claims under the Longshore Act. The amendments required workers to appeal claim-related decisions to a new administrative board and then to a U.S. court of appeals. Before the amendments, a worker’s first appeal under the Longshore Act was to …

Got Water? Limiting Washington's Stockwatering Exemption To Five Thousand Gallons Per Day, Kara Dunn

Washington Law Review

In Washington, a comprehensive groundwater code governs groundwater withdrawals and use. This regulatory scheme protects water users, minimizes disputes over water rights, and maximizes the beneficial use of public water resources. Despite these protections, groundwater resources are declining in many parts of the state. Washington exempts certain types of small withdrawals from the groundwater code’s regulations, including water for livestock. Conflicting interpretations of this stock-watering exemption have created uncertainty over whether exempt stock-watering withdrawals are unlimited, or are limited to 5000 gallons per day. This Comment analyzes the conflicting interpretations of the groundwater exemption statute under Washington’s rules of statutory …

Swiss Cheese That's All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, Jessica Murphy

Washington Law Review

In United States v. Curtin, the Ninth Circuit, sitting en banc, held that Federal Rule of Evidence 404(b) permits a defendant’s reading material to be introduced as evidence of his intent to commit a crime. The decision expressly overruled Guam v. Shymanovitz, an earlier Ninth Circuit opinion that called the admissibility of reading material into question. This Note argues that the Curtin decision failed to appreciate the extent to which reading material may reveal only a defendant’s propensity to commit a charged crime, rather than his or her intent to do so. To reduce the possibility that impermissible …

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean M. O'Connor

Articles

The traditional law school appellate case method is not well-suited to teaching students either the substance and process of counseling entrepreneurial clients or helping such clients create IP strategies that effectively advance their business vision. This Article describes the author’s creation of new courses and clinics to advance teaching IP in the emerging field of entrepreneurship and innovation law

Counterfeit Pharmaceuticals In China: Could Changes Bring Stronger Protection For Intellectual Property Rights And Human Health?, Dina M. Bronshtein

Washington International Law Journal

Although China seeks to improve its image as a legitimate participant in the global intellectual property (“IP”) market, Chinese companies continue to produce more than thirty percent of the counterfeit drugs circulating in the world today. The counterfeit pharmaceutical industry profits from efficient and cost-effective production systems by producing counterfeits at an exceedingly low cost. This poses a serious problem because the production and sale of counterfeit drugs leads to negative economic and social health-related effects. China’s existing penalties for counterfeit pharmaceutical production are considered a mere cost of doing business in China, rather than a deterrent from engaging in …

Australia's Northern Territory National Emergency Response Act: Addressing Indigenous And Non-Indigenous Inequities At The Expense Of International Human Rights?, Jenna Gruenstein

Washington International Law Journal

In 2007, Australia passed the Northern Territory National Emergency Response Act (“NT Emergency Response Act”), ostensibly reacting to a recent report detailing exceedingly high levels of sexual abuse of Aboriginal children. This Comment argues that the NT Emergency Response Act likely violates Australia’s obligations under the United Nations’ (“U.N.”) International Convention on the Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”). The NT Emergency Response Act provides an opportunity for the Racial Discrimination Convention’s enforcement body, the Committee on the Elimination of Racial Discrimination (“CERD”), to extend its application of the specialized guidelines for indigenous peoples beyond the …

The Territory Federal Jurisdiction Forgot: The Question Of Greater Federal Jurisdiction In American Samoa, Michael W. Weaver

Washington International Law Journal

The United States Territory of American Samoa is over 7000 miles from Washington, D.C., and that distance might explain the United States’ limited interest in the territory. The lack of interest has allowed American Samoa to maintain its unique cultural foundations. However, it has also kept American Samoa detached from the federal governmental structure, including the judicial system. In fact, a federal district court does not exist in American Samoa, nor has the territory been incorporated into a federal judicial district. A lack of a federal presence has not been a major issue until recently. In the last few years, …

Making Good On The Promise Of International Law: The Convention On The Rights Of Persons With Disabilities And Inclusive Education In China And India, Vanessa Torres Hernandez

Washington International Law Journal

The Convention on the Rights of Persons with Disabilities conceptualizes disability as a human rights issue and requires state parties to provide an inclusive education to all children with disabilities. However, China and India, the two most populous signatory countries, do not currently provide inclusive education—described by the Convention as nondiscriminatory access to general education, reasonable accommodation of disability, and individualized supports designed to fulfill the potential of individual children with disabilities. Though both India and China have laws that encourage the education of children with disabilities, neither country’s laws mandate inclusive education and neither country currently provides universal education …