Law Commons^™

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

All Faculty Scholarship

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

Workplace Blogs And Workers' Privacy, Rafael Gely, Leonard Bierman

Faculty Publications

In this article we focus on a related issue. We discuss the development of blogs, and the virtual “space” where blogs and bloggers interact the “blogosphere” and their impact on the issue of workers' privacy. To some extent it would seem a bit of a contradiction to talk about privacy and blogging in the same article. Blogging, as we will discuss below, does not appear to be the most private of enterprises. There are, we argue, a number of interesting privacy issues raised by the development of blogs as an employee communication tool and by the way employers have reacted …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

All Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Faculty Scholarship

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

The Gathering Twilight? Information Privacy On The Internet In The Post-Enlightenment Era, Mark F. Kightlinger

Law Faculty Scholarly Articles

The steady stream of news reports about violations of privacy on the Internet has spawned a growing body of literature discussing the legal protections available for personally identifiable information—i.e., information about identified or identifiable persons—collected via the Internet. This Article takes the discussion of Internet privacy protection in a new and very different direction by reexamining the U.S. Internet privacy regime from the perspective of a broader cultural/historical analysis and critique. The perspective adopted is that of Alasdair MacIntyre's account of the disarray in Enlightenment and post-Enlightenment discourse about morality and human nature and the accompanying disappearance of rational justifications …

Internet Cookies: When Is Permission Consent?, Max Oppenheimer

All Faculty Scholarship

No abstract provided.

Transnational Media Law At The Bar And In The Classroom, Jack M. Weiss

Journal Articles

No abstract provided.

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …

Accessing The Internet Through The Neighbor's Wireless Internet Connection: Physical Trespass In Virtual Reality, Ned Snow

Faculty Publications

As wireless computer networks are becoming commonplace, so also is the practice of accessing the Internet through another's wireless network. The practice raises a simple question of law: Does accessing a wireless network, without express authorization, violate the property rights of the network operator? This Article argues that it does. A neighbor who intentionally accesses the Internet through a network operator's connection appears to trespass on physical property of the operator - the operator's router. Recent Internet jurisprudence suggests that the electronic signals that the neighbor sends through the router are sufficient to find trespassory physical contact. The same jurisprudence …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

This article analyzes the judicial decisions involving Internet and other electronic contracts during the period from July 1, 2005 to June 30, 2006. The authors explain that this year's cases show a maturation of the common law of electronic contracts in that the judges are beginning to recognize the realities of electronic communications and to apply traditional contract principles to those communications unless the realities of the technology justifies a different result.

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Scholarly Articles

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches - which emphasize a website's "interactivity" and "target audience" - are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This Article argues that courts …

Keeping Up To Date With Ip News Services And Blogs: Drowning In A Sea Of Sameness?, Jon R. Cavicchi

Law Faculty Scholarship

It seems like so many IP related Websites you visit invite you to join their free email list to keep you up to date. Sources span a wide spectrum including governmental organizations, non-governmental organizations, educational institutions, consulting services, law firms, commercial publishers and more. These sources span the spectrum from free, to low fee to premium pricing. With all of this information overload and choices, how do you differentiate and choose news sources?

The goals of this article are twofold. Goal one is to present a survey of types and categories of IP news tools available to IP researchers. Since …

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Faculty Publications

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches-which emphasize a Web site's "interactivity" and "target audience" -are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This article argues that courts should reinstitute …

Cybertrespass And Trespass To Documents, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

Articles in Law Reviews & Other Academic Journals

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a free marketplace of ideas that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Twenty-First Century Pillow-Talk: Applicability Of The Marital Communications Privilege To Electronic Mail, Mikah K. Thompson

Faculty Works

The marital privilege has two parts: the testimonial privilege and the communications privilege. Originally, the testimonial privilege prevented one spouse from testifying against another. According to the United States Supreme Court, spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. Thus, if a husband were not permitted to testify, then his wife, as …

Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David R. Barnhizer

Law Faculty Articles and Essays

This Symposium focuses in part on the ideas of Margaret Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems through …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron K. Perzanowski

Faculty Publications

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

The World Trade Law Of Censorship And Internet Filtering, Tim Wu

Faculty Scholarship

Consider the following events, all from the last five years: (1) An American newsmagazine, Barron's, posts an unflattering profile of an Australian billionaire named Joseph Gutnick on its web site – the publisher, Dow Jones, Inc., is sued in Australia and forced to settle; (2) Mexico's incumbent telephone company, Telmex, blocks Mexicans from reaching the web site of the Voice-over-IP firm Skype; (3) the United States begins a major crackdown on web gambling services, causing serious economic damage to several small Caribbean economies; (4) the Chinese government prevents its citizens from using various foreign Internet services, including foreign e-mail and …

What The Internet Age Means For Female Scholars, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Is the Internet-driven transformation of legal scholarship good for the girls, or bad for the girls?

Will it remove some of the handicaps that have dogged women's efforts to join the ranks of scholarly "superstars"? Or will it only increase the professional obstacles still faced by women in legal academia? In this short Essay, the author tries to predict some of the promises and perils that the Internet holds for women in the legal academy.

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

Articles

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu

Faculty Scholarship

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what …

Does Power Grow Out Of The Barrel Of A Modem? Some Thoughts On Jack Goldsmith And Tim Wu's 'Who Controls The Internet?', Glenn Harlan Reynolds

Scholarly Works

This review of Jack Goldsmith and Tim Wu's Who Controls the Internet? Illusions of a Borderless World, notes that Goldsmith and Wu are correct in concluding that events in recent years undercut cyber-utopian theories of an Internet that is beyond the reach of national sovereignty. It argues, however, that the failure to achieve such goals does not mean that the Internet is unimportant as a source of expanded freedom and power on the part of ordinary people, and suggests that this trend of individual empowerment is likely to continue.