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Dismantling The “Black Opticon”: Privacy, Race Equity, And Online Data-Protection Reform, Anita L. Allen Feb 2022

Dismantling The “Black Opticon”: Privacy, Race Equity, And Online Data-Protection Reform, Anita L. Allen

Faculty Scholarship at Penn Law

African Americans online face three distinguishable but related categories of vulnerability to bias and discrimination that I dub the “Black Opticon”: discriminatory oversurveillance, discriminatory exclusion, and discriminatory predation. Escaping the Black Opticon is unlikely without acknowledgement of privacy’s unequal distribution and privacy law’s outmoded and unduly race-neutral façade. African Americans could benefit from race-conscious efforts to shape a more equitable digital public sphere through improved laws and legal institutions. This Essay critically elaborates the Black Opticon triad and considers whether the Virginia Consumer Data Protection Act (2021), the federal Data Protection Act (2021), and new resources for the ...


Antitrust Interoperability Remedies, Herbert J. Hovenkamp Feb 2022

Antitrust Interoperability Remedies, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or ...


What Is The Relationship Between Language And Thought?: Linguistic Relativity And Its Implications For Copyright, Christopher S. Yoo Sep 2021

What Is The Relationship Between Language And Thought?: Linguistic Relativity And Its Implications For Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

To date, copyright scholarship has almost completely overlooked the linguistics and cognitive psychology literature exploring the connection between language and thought. An exploration of the two major strains of this literature, known as universal grammar (associated with Noam Chomsky) and linguistic relativity (centered around the Sapir-Whorf hypothesis), offers insights into the copyrightability of constructed languages and of the type of software packages at issue in Google v. Oracle recently decided by the Supreme Court. It turns to modularity theory as the key idea unifying the analysis of both languages and software in ways that suggest that the information filtering associated ...


Administrative Law In The Automated State, Cary Coglianese Jan 2021

Administrative Law In The Automated State, Cary Coglianese

Faculty Scholarship at Penn Law

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated ...


The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo Jan 2021

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

Faculty Scholarship at Penn Law

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial ...


Network Effects In Action, Christopher S. Yoo Nov 2020

Network Effects In Action, Christopher S. Yoo

Faculty Scholarship at Penn Law

This Chapter begins by examining and exploring the theoretical and empirical limits of the possible bases of network effects, paying particular attention to the most commonly cited framework known as Metcalfe’s Law. It continues by exploring the concept of network externalities, defined as the positive external consumption benefits that the decision to join a network creates for the other members of the network, which is more ambiguous than commonly realized. It then reviews the structural factors needed for models based on network effects to have anticompetitive effects and identifies other factors that can dissipate those effects. Finally, it identifies ...


Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick Jan 2019

Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick

Faculty Scholarship at Penn Law

Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.

This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews ...


Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky Jan 2019

Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky

Faculty Scholarship at Penn Law

In this Article, we provide a blueprint for personalizing copyright law in order to reduce the deadweight loss that stems from its universal application to all users, including those who would not have paid for it. We demonstrate how big data can help identify inframarginal users, who would not pay for copyrighted content, and we explain how copyright liability and remedies should be modified in such cases.


Transparency And Algorithmic Governance, Cary Coglianese, David Lehr Jan 2019

Transparency And Algorithmic Governance, Cary Coglianese, David Lehr

Faculty Scholarship at Penn Law

Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose ...


Paul Baran, Network Theory, And The Past, Present, And Future Of Internet, Christopher S. Yoo Dec 2018

Paul Baran, Network Theory, And The Past, Present, And Future Of Internet, Christopher S. Yoo

Faculty Scholarship at Penn Law

Paul Baran’s seminal 1964 article “On Distributed Communications Networks” that first proposed packet switching also advanced an underappreciated vision of network architecture: a lattice-like, distributed network, in which each node of the Internet would be homogeneous and equal in status to all other nodes. Scholars who have subsequently embraced the concept of a lattice-like network approach have largely overlooked the extent to which it is both inconsistent with network theory (associated with the work of Duncan Watts and Albert-László Barabási), which emphasizes the importance of short cuts and hubs in enabling networks to scale, and the actual way, the ...


The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow Aug 2018

The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow

Faculty Scholarship at Penn Law

In this report, Shakow explains how a decentralized autonomous organization functions and interacts with the U.S. tax system and presents the many tax issues that these structures raise. The possibility of using smart contracts to allow an entity to operate totally autonomously on a blockchain platform seems attractive. However, little thought has been given to how such an entity can comply with the requirements of a tax system. The DAO, the first major attempt to create such an organization, failed because of a programming error. If successful examples proliferate in the future, tax authorities will face significant problems in ...


Common Carriage’S Domain, Christopher S. Yoo Jan 2018

Common Carriage’S Domain, Christopher S. Yoo

Faculty Scholarship at Penn Law

The judicial decision invalidating the Federal Communications Commission's first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the academic literature on common carriage as well as lessons from its implementation history. This Essay distills these learnings into five factors that play a key role in promoting common carriage's success: (1) commodity products, (2) simple interfaces, (3) stability and uniformity in the transmission technology, (4) full deployment of the transmission network, and (5) stable demand and market shares. Applying this framework to ...


Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert Jan 2018

Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert

Faculty Scholarship at Penn Law

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different ...


An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo Nov 2017

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

Faculty Scholarship at Penn Law

Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by ...


The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow Aug 2017

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

Faculty Scholarship at Penn Law

Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.


Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr Jun 2017

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

Faculty Scholarship at Penn Law

Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while ...


Legal Mechanisms For Governing The Transition Of Key Domain Name Functions To The Global Multi-Stakeholder Community, Aaron Shull, Paul Twomey, Christopher S. Yoo Jan 2017

Legal Mechanisms For Governing The Transition Of Key Domain Name Functions To The Global Multi-Stakeholder Community, Aaron Shull, Paul Twomey, Christopher S. Yoo

Faculty Scholarship at Penn Law

This Chapter proposes an alternative approach to the IANA transition that migrates the existing core contractual requirements imposed by the US government to the existing IANA functions customers. It also advances modest internal accountability revisions that could be undertaken within ICANN’s existing structure. Specifically, it advocates that the Independent Review Tribunal charged with reviewing certain ICANN board of directors-related decisions be selected by a multi-stakeholder committee rather than being subject to approval by ICANN and expanding the grounds for review to cover all of the rubrics recommended by ICANN’s “Improving Institutional Confidence” process in 2008-2009, including fairness, fidelity ...


Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo Nov 2016

Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo

Faculty Scholarship at Penn Law

The current debate over network neutrality has not fully appreciated how service differentiation can benefit consumers and promote Internet adoption. On the demand-side, service differentiation addresses the primary obstacle to adoption, which is the lack of perceived need for Internet service, and reflects the growing heterogeneity of consumer demand. On the supply-side, monopolistic competition has long underscored how product differentiation can create stable equilibria with multiple providers – notwithstanding the presence of unexhausted economies of scale – by allowing competitors to target subsegments of the overall market that place a higher value on particular services. Conversely, prohibiting service differentiation would restrict competition ...


Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo Nov 2016

Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo

Faculty Scholarship at Penn Law

Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the ...


Modularity Theory And Internet Regulation, Christopher S. Yoo Jan 2016

Modularity Theory And Internet Regulation, Christopher S. Yoo

Faculty Scholarship at Penn Law

Modularity is often cited as one of the foundations for the Internet’s success. Unfortunately, academic discussions about modularity appearing in the literature on Internet policy are undertheorized. The persistence of nonmodular architectures for some technologies underscores the need for some theoretical basis for determining when modularity is the preferred approach. Even when modularity is desirable, theory must provide some basis for making key design decisions, such as the number of modules, the location of the interfaces between the modules, and the information included in those interfaces.

The literature on innovation indicates that modules should be determined by the nature ...


Cloud Computing, Contractibility, And Network Architecture, Christopher S. Yoo Apr 2015

Cloud Computing, Contractibility, And Network Architecture, Christopher S. Yoo

Faculty Scholarship at Penn Law

The emergence of the cloud is heightening the demands on the network in terms of bandwidth, ubiquity, reliability, latency, and route control. Unfortunately, the current architecture was not designed to offer full support for all of these services or to permit money to flow through it. Instead of modifying or adding specific services, the architecture could redesigned to make Internet services contractible by making the relevant information associated with these services both observable and verifiable. Indeed, several on-going research programs are exploring such strategies, including the NSF’s NEBULA, eXpressive Internet Architecture (XIA), ChoiceNet, and the IEEE’s Intercloud projects.


Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo Jan 2015

Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo

Faculty Scholarship at Penn Law

Many observers attribute the Internet’s success to two principles: Moore’s Law and Metcalfe’s Law. These precepts are often cited to support claims that larger networks are inevitably more valuable and that costs in a digital environment always decrease. This Article offers both a systematic description of both laws and then challenges the conventional wisdom by exploring their conceptual limitations. It also explores how alternative mechanisms, such as gateways and competition, can permit the realization benefits typically attributed to Moore’s Law and Metcalfe’s Law without requiring increases in network size.


Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo Jan 2015

Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo

Faculty Scholarship at Penn Law

Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by two ...


U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo Jun 2014

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

Faculty Scholarship at Penn Law

As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) networks ...


A Brief Overview Of The Nebula Future Internet Architecture, Tom Anderson, Ken Birman, Robert Broberg, Matthew Caesar, Douglas Comer, Chase Cotton, Michael J. Freedman, Andreas Haeberlen, Zachary G. Ives, Arvind Krishnamurthy, William Lehr, Boon Thau Loo, David Mazieres, Antonio Nicolosi, Jonathan M. Smith, Ion Stoica, Robbert Van Renesse, Michael Walfish, Hakim Weatherspoon, Christopher S. Yoo Jan 2014

A Brief Overview Of The Nebula Future Internet Architecture, Tom Anderson, Ken Birman, Robert Broberg, Matthew Caesar, Douglas Comer, Chase Cotton, Michael J. Freedman, Andreas Haeberlen, Zachary G. Ives, Arvind Krishnamurthy, William Lehr, Boon Thau Loo, David Mazieres, Antonio Nicolosi, Jonathan M. Smith, Ion Stoica, Robbert Van Renesse, Michael Walfish, Hakim Weatherspoon, Christopher S. Yoo

Faculty Scholarship at Penn Law

NEBULA is a proposal for a Future Internet Architecture. It is based on the assumptions that: (1) cloud computing will comprise an increasing fraction of the application workload offered to an Internet, and (2) that access to cloud computing resources will demand new architectural features from a network. Features that we have identified include dependability, security, flexibility and extensibility, the entirety of which constitute resilience.

NEBULA provides resilient networking services using ultrareliable routers, an extensible control plane and use of multiple paths upon which arbitrary policies may be enforced. We report on a prototype system, Zodiac, that incorporates these latter ...


Possible Paradigm Shifts In Broadband Policy, Christopher S. Yoo Jan 2014

Possible Paradigm Shifts In Broadband Policy, Christopher S. Yoo

Faculty Scholarship at Penn Law

Debates over Internet policy tend to be framed by the way the Internet existed in the mid-1990s, when the Internet first became a mass-market phenomenon. At the risk of oversimplifying, the Internet was initially used by academics and tech-savvy early adopters to send email and browse the web over a personal computer connected to a telephone line via networks interconnected through in a limited way. Since then, the Internet has become much larger and more diverse in terms of users, applications, technologies, and business relationships. More recently, Internet growth has begun to slow both in terms of the number of ...


Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo Jan 2014

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

Faculty Scholarship at Penn Law

Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step ...


Technological Determinism And Its Discontents, Christopher S. Yoo Jan 2014

Technological Determinism And Its Discontents, Christopher S. Yoo

Faculty Scholarship at Penn Law

This book review takes a critical review of the claim advanced by Susan Crawford in Captive Audience that the merger between Comcast and NBC Universal would harm consumers and that policymakers should instead promote common carriage regulation and subsidize municipal symmetrical gigabit fiber-to-the-home (FTTH). First it evaluates the extent to which next-generation digital subscriber lines (DSL) and wireless broadband technologies can serve as effective substitutes for cable modem service, identifying FCC data showing that the market has become increasingly competitive and likely to continue to do so. Furthermore, the market is not structured in a way that would permit the ...


The Taxation Of Cloud Computing And Digital Content, David Shakow Jul 2013

The Taxation Of Cloud Computing And Digital Content, David Shakow

Faculty Scholarship at Penn Law

“Cloud computing” raises important and difficult questions in state tax law, and for Federal taxes, particularly in the foreign tax area. As cloud computing solutions are adopted by businesses, items we view as tangible are transformed into digital products. In this article, I will describe the problems cloud computing poses for tax systems. I will show how current law is applied to cloud computing and will identify the difficulties current approaches face as they are applied to this developing technology.

My primary interest is how Federal tax law applies to cloud computing, particularly as the new technology affects international transactions ...


Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp Jan 2013

Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.

FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND ...