Law Commons^™

What Google Knows: Privacy And Internet Search Engines, Omer Tene

Omer Tene

Search engines are the dominant actors on the Internet today and Google is undoubtedly, the undisputed king of search, evoking ambivalent feelings. It is adored for its ingenuity, simple, modest-looking interface, and superb services offered at no (evident) cost. Yet increasingly, it is feared by privacy advocates who view it as a private sector "big brother," posing what one commentator dubbed “the most difficult privacy problem in all of human history.” Google is an informational gatekeeper, harboring previously unimaginable riches of personal data. Billions of search queries stream across Google servers each month, the aggregate thoughtstream of humankind online. Google …

Privacy 3.0--The Principle Of Proportionality, Andrew B. Serwin

Andrew B. Serwin

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone - Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 …

The Boundaries Of Contact Law In Cyberspace, Leon E. Trakman

Leon E Trakman Dean

Cyberspace has introduced novel ways in which to conclude, perform and terminate agreements. It has also raised doubts about whether traditional principles of contract law can adequately regulate new categories of contracts like click-wrap and browse-wrap agreements that were unheard of a few decades ago. This article explores these exciting new developments. Starting with an examination of late Nineteenth and early Twentieth adhesion contracts and the law of unconscionability, it evaluates innovations in contracting that have evolved since then. Uncovering the complexities associated with “wrap” contracts and End User Licensing Agreements [EULAs], it scrutinizes how legislatures and courts have responded …

Hold The Phone: Assessing The Rights Of Wireless Handset Owners And Carriers, Rob M. Frieden

Rob Frieden

Most subscribers in the United States acquire a subsidized handset when they activate or renew wireless telephone service. In exchange for purchasing a handset below cost, these customers must commit to a two year service term, with substantial financial penalties for early termination, and they must accept carrier-imposed limitations on the use of their handsets. Wireless carriers typically lock subscriber access to one carrier and lock out or thwart unaffiliated providers from providing content, software and applications to wireless handsets. Limitations on the use of wireless handsets juxtaposes with the Carterfone policy established by the Federal Communications Commission (“FCC”) forty …

Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner

All Faculty Scholarship

Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …

Preserving Competition In Multi-Sided Innovative Markets: How Do You Solve A Problem Like Google?, Kristine Laudadio Devine

Kristine L Devine

The unique characteristics of the search advertising industry encourage the development of anticompetitive monopoly power, facilitating the rise and dominance of companies like Google. First, the search advertising industry is subject to multi-sided network effects that create a positive feedback loop. An increase in the number of customers on one side of the market attracts increased numbers of customers on the other side, enabling dominant firms to entrench their market power. Second and relatedly, the search advertising industry operates in an innovative market where firms compete not to outdo competitors on price but rather to displace one another’s products entirely. …

Only Connect, Kevin Werbach

Kevin Werbach

There are two kinds of legal rules for communications networks, such as the Internet and the telephone system. Interconnection rules define how and when networks must exchange traffic with each other, and non-discrimination rules prevent networks from favoring some customers’ traffic over others. Each approach has unique strengths and weaknesses. The distinction has never been fully appreciated, even though regulators have imposed both requirements many times.

Non-discrimination questions predominate in communications and Internet policy today, thanks to the high-profile battle over “network neutrality” rules for broadband networks. Yet both sides in the network neutrality debate are mistaken. The central challenge …

The Effectiveness Of Internet Content Filters, Philip B. Stark

Philip B Stark

Abstract. As part of its defense of the Child Online Protection Act, which seeks to prevent minors from viewing commercially published harmful-to-minors material on the World Wide Web, the U.S. Department of Justice commissioned a study of the prevalence of “adult” materials and the effectiveness of Internet content filters in blocking them. As of 2005–2006, about 1.1% of webpages indexed by Google and MSN were adult—hundreds of millions of pages. About 6% of a set of 1.3 billion searches executed on AOL, MSN and Yahoo! in summer 2005 retrieved at least one adult webpage among the first ten results, and …

Just Click Submit: The Collection, Dissemination And Tagging Of Personally Identifying Information, Corey A. Ciocchetti

Corey A Ciocchetti

As the twenty-first century bustles forward, the e-commerce arena becomes an ever more dangerous place. On a daily basis, websites collect vast amounts of personally identifying information (PII) and mine it in sophisticated databases to discover consumer trends and desires. This process provides many benefits – such as tailored websites and relevant marketing – that few Web surfers would care to do without. However, serious threats lurk in cyberspace and are enhanced by consumers who continue to submit vast amounts of information in a state of relative unawareness. Not wanting to miss out on their Web surfing experience, visitors submit …

The Privacy Matrix, Corey A. Ciocchetti

Corey A Ciocchetti

The twenty-first-century e-commerce environment is a scary place. Lurking within are technologically-sophisticated e-threats ready to compromise an individual’s personally identifying information (PII). At the same time, consumers submit vast amounts of PII into cyberspace without comprehending such dangers while businesses stumble to protect the information they collect and sell it on the open market. The United States legal system – currently a mixture of self-regulation and a patchwork of federal/state legislation – is ill-equipped to deal with these e-threats effectively. A new paradigm is needed. The Privacy Matrix paradigm categorizes the most prominent e-threats into three stages of the PII …

Regulating The Post-Regulatory Cyber-State, Andrew D. Murray

Professor Andrew D Murray

This Chapter looks at how regulation succeeds and fails within the environment of Cyberspace which has a different physical and social construct than Real Space. It discusses my key concept of Symbiotic Regulation and explains how regulation may be effectively implemented using models which harness the community in the regulatory process.

Symbiotic Regulation, Andrew D. Murray

Professor Andrew D Murray

In this paper the author examines the development and design of regulatory structures in Cyberspace. The paper considers and models how all forms of control – including design and market controls, as well as traditional command and control regulation are to be applied within the complex and flexible environment of Cyberspace. Drawing on the work of Cyber-regulatory theorists such as Yochai Benkler, Joel Reidenberg and Lawrence Lessig and matching it with an examination of social ordering from the English Peasant’s Revolt to the more modern theories of Jurgen Habermas and Nicklaus Luhmann this paper suggests a model of Cyber-regulation which …

Beneath The Surface: Metadata, Transparency And The Ethical Use Of Information, Michael Katz

Michael Katz

While the gains from the digital revolution are tremendous in terms of increased efficiency, access to information and searchability, the change in information format has caught some off guard. No longer is data limited to what is available on a piece of paper. Yet there is a price to pay for these gains. Where once a letter’s recipient could not see anything but what the sender openly presented in the letter, today that email, word processing document and spreadsheet all contain additional information not readily visible on their face. Beneath the surface, packed into the file, exists metadata - information …

Recycling Copyright: Survival And Growth In The Remix Age, Michael Katz

Michael Katz

Current copyright law, both as written and as applied, is stifling the development of new content, limiting the use of creative work, and prohibiting uses which are reasonable and fair given the state of current technology. Copyright law should be amended to recognize profound change in publishing and editing created by the advent and growth of digital technology, and should allow for reference to and creative reuse and recycling of all digital media. If done correctly, the original goals of copyright - to encourage and reward the development of creative works for the betterment of society - will be served …

Real Taxation Of Virtual Commerce, Steven Chung

Steven Chung

In virtual worlds, people participate in fantasy adventures or socialize in a visually immersive online environment. Popular examples include World of Warcraft, Second Life, Entropia Universe and Ultima Online. As more people are reportedly earning real money through their virtual world activities, governments are looking into whether virtual world transactions are subject to real taxes, even if the participant does not convert his virtual income into cash. However, the application of U.S. tax law has led to unclear and sometimes conflicting interpretations.

This paper instead looks into the virtual world's economic environment to determine whether in-world transactions should be taxable …

Throwing It All Away: Community, Data Privacy And The False Choices Of Web 2.0, Eli Edwards

Eli Edwards

Online privacy has long been a challenge, but the rise of Web 2.0 technologies has made it easier for more people to share personal information about themselves. There is a particular concern that young people who have grown accustomed to baring their private information in the public Internet sphere are especially vulnerable to potential harms now and in the near future. There is even a recurrent meme that posits people today, especially young people immersed in the digital culture, no longer value the right to privacy; the assumption is that between the equal values of community and privacy, Web 2.0 …

Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner

Richard Warner

Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …