Law Commons^™

Hysteria Over Sexting: A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Can A Computer Intercept Your Email?, Bruce E. Boyden

Bruce E. Boyden

In recent years it has become feasible for computers to rapidly scan the contents of large amounts of communications traffic to identify certain characteristics of those messages: that they are spam, contain malware, discuss various products or services, are written in a particular dialect, contain copyright-infringing files, or discuss symptoms of particular diseases. There is a wide variety of potential uses for this technology, such as research, filtering, or advertising. But the legal status of automated processing, if it is done without advance consent, is unclear. Where it results in the disclosure of the contents of a message to others, …

The Mixed Blessing Of A Deregulatory Endpoint For The Public Switched Telephone Network, Rob Frieden

Rob Frieden

Receiving authority to dismantle the wireline public switched telephone network (“PSTN”) will deliver a mixture of financial benefits and costs to incumbent carriers. Even if these carriers continue to provide basic telephone services via wireless facilities, they will benefit from substantial relaxation of common carriage duties, no longer having to serve as the carrier of last resort and having the opportunity to decide whether and where to provide service. On the other hand, incumbent carriers may have underestimated the substantial financial and marketplace advantages they also will likely lose in the deregulatory process. This paper will identify the potential problems …

The Court Misses The Point Again In United States V. Jones: An Opt-In Model For Privacy Protection In A Post Google-Earth World, Mary G. Leary

Mary G Leary

“Nothing is private anymore.” This is an oft repeated sentiment by many Americans, not to mention the focus of judicial confusion and legislative blustering. In the wake of publicly available technologies such as Google Earth, internet tracking, cell phone triangulation, to name just a few, many people feel unable to prevent the government or anyone from obtaining private information. While this may seem simply a function of a modern world, this reality creates a fundamental problem for Fourth Amendment jurisprudence which has heretofore gone unrecognized. The Fourth Amendment protects citizens from unreasonable searches and seizures. Therefore, in order for the …

“Technopanics, Threat Inflation, And The Danger Of An Information Technology Precautionary Principle”, Adam Thierer

Adam Thierer

Fear is an extremely powerful motivational force. In public policy debates, appeals to fear are often used in an attempt to sway opinion or bolster the case for action. Such appeals are used to convince citizens that threats to individual or social wellbeing may be avoided only if specific steps are taken. Often these steps take the form of anticipatory regulation based on the precautionary principle.

Such “fear appeal arguments” are frequently on display in the Internet policy arena and often take the form of a full-blown “moral panic” or “technopanic.” These panics are intense public, political, and academic responses …

Me.Com: The Growing Need For The Illinois Right Of Publicity Act To Respond To Online Social Networks, Anne E. Mclean

Anne E McLean

This Comment discusses the recent growth in prevalence of online social networks (“OSNs”) in both personal and commercial contexts and, given the novelty and breadth of current issues surrounding OSNs, focuses analysis on problems that arise when attempting to locate a home for claims involving OSNs within the current Illinois publicity statute, the Illinois Right of Publicity Act. Of the thirty states that recognize the right of an individual to recover damages for the appropriation of his identity, Illinois is one of nineteen states to codify these rights by statute and adopts the majority view—extending protection to individuals without regard …

The Law Of The Zebra, Andrea Matwyshyn

Andrea Matwyshyn

At the dawn of internet law, scholars and judged debated whether a “law of the horse” – a set of specific laws addressing technology problems – was ever needed. Time has demonstrated that, in some cases, the answer is yes. However, today courts are inherently confused regarding the trajectory for contract law in technology contexts: a technology-centric analysis is threatening to subvert traditional contract law and the future of entrepreneurship: circuit splits have emerged in what might be called an undesirable “law of the zebra.” Do contracts that involve technology indeed require exceptional contract rules? In particular, does the use …

Mapping, Modeling, And The Fragmentation Of Environmental Law, David R. Owen

David R Owen

In the past forty years, environmental researchers have achieved major advances in electronic mapping and spatially explicit, computer-based simulation modeling. Those advances have turned quantitative spatial analysis—that is, quantitative analysis of data coded to specific geographic locations—into one of the primary modes of environmental research. Researchers now routinely use spatial analysis to explore environmental trends, diagnose problems, discover causal relationships, predict possible futures, and test policy options. At a more fundamental level, these technologies and an associated field of theory are transforming how researchers conceptualize environmental systems. Advances in spatial analysis have had modest impacts upon the practice of environmental …

Cyber Terrorism Technology And The Laws Of Cyber Warfare, Shauna Guyton

No abstract provided.

Aristotle's Internet: Free Speech Values Online, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does …

Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach

Aaron Schwabach

Abstract User-generated Humorous Subtitles and Copyright Aaron Schwabach Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody. This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence – Hitler’s breakdown rant – from the 2004 German …

Law Of The Intermediated Information Exchange, Jacqueline Lipton

Jacqueline D Lipton

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Aristotle's Internet: Free Speech Values Online, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from othes, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does …

User-Generated Humorous Subtitles And Copyright, Aaron Schwabach

Aaron Schwabach

Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody. This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence – Hitler’s breakdown rant – from the 2004 German film Der Untergang [Downfall in the US]. The …

Icann Dot-Anything: Rethinking The Scope Of The New Gtld Expansion, Its Effect On Government Regulation, And Its Impact On Trademark Owners, Ukeme Awakessien

Ukeme Awakessien

ICANN rationalizes that the expansion of gTLD increases consumer choice across the Internet. This notion of “consumer choice” as the reason for expansion of gTLDs fails to fully regard the future of domain names and its intersection with trademark law. This reasoning also conflicts with ICANN’s charter to lessen the burdens of government in regulating the Internet. Striking an adequate balance between increasing consumer choice and Internet regulation requires additional policy considerations and robust regulation. After examining the legal framework under which ICANN was chartered and comparing the charter with how ICANN currently operates and governs the Internet, this Article …

Patient Privacy In The Cloud: Why Congress Should Model Hipaa Enforcement Mechanisms After The Fca To Meet A New Wave Of Privacy Threats From The Implementation Of Cloud-Computing Technologies, Andrew M. Palanzi

Andrew M Palanzi

While Congress has taken an important step in amending HIPAA via the HITECH Act to include business associates under many of the provisions of the Privacy and Security Rules, they have ultimately failed to give HIPAA satisfactory enforcement mechanisms by not providing individuals with any course of action to protect their privacy, capping yearly fines at $1,500,000.00, and not requiring stricter enforcement by OCR. Because the Privacy and Security Rules act as the primary legal regulation for the protection of private, sensitive electronic medical records that are stored and transmitted on the cloud, it becomes imperative that these protections are …

Mortgaging The Meme: Financing And Managing Disruptive Innovation, Jon M. Garon

Jon M. Garon

Traditional financing of innovative companies emphasizes the use of patents and associated intellectual property rights to secure debt and provide assets for valuation. Although the model suffices for incremental innovation, it does not account for investments in disruptive innovation, those that undermine traditional business models, supply chains or industry relationships.Disruptive innovation can be described as the introduction of a new conceptual idea or meme into an existing system that causes the system to be fundamentally altered. Assembly lines, air conditioning, digital film, and personal computers represent such innovations, all of which led to fundamental paradigm shifts.The convergence of globalization, a …

Right To Information Identity, Elad Oreg

Elad Oreg

Inspired by the famous Warren&Brandeis conceptualization of the "right to privacy", this article tries to answer a different modern conceptual lacuna and present the argument for the need to conceptualize and recognize a new, independent legal principle of a "right to information-identity". This is the right of an individual to the functionality of the information platforms that enable others to identify and know him and to remember who and what he is. What was happening regarding privacy in the late 19th century happens now with identity. Changes in technology and social standards make the very notion of identity increasingly fluid, …

The Do Not Track Me Online Laws: Creating A Ceiling When The Sky’S The Limit And We’Re Halfway To Heaven, Nada Rashdan Mohamed

nrm40@case.edu Mohamed

According to a recent Wall Street Journal article, every purchase you make with your MasterCard or VISA could be used to provide you with targeted ads as you surf the Web. The companies are investigating using methods of tracking customer purchases in brick-and-mortar stores in order to deliver ads tailored to their needs online. Today, none have the capability to accomplish this feat of linking an individual’s offline purchase activity to an online profile. However, the credit card system, with its massive customer base and the capacity to track millions of purchases daily, both online and offline, may represent the …

Search Method In Discovery: How Rule 26'S Silence Poses A Risk Of Sanctions To Attorneys And Increases The Cost Of Litigation, Khanh T. Huynh

Khanh T Huynh

The 2006 Amendments to the Federal Rules of Civil Procedure (FRCP) are the first codified references in the Rules to issues of electronic discovery (e-discovery). Still, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolean search terms can be difficult to run. The cost to run complicated searches can substantially increase the discovery cost. The lack of rules addressing search terms in FRCP also leaves many parties at risk of sanction. …

Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert Sloan

All Faculty Scholarship

When you download the free audio recording software from Audacity, you agree that Audacity may collect your information and use it to send you advertising. Billions of such pay-with-data exchanges feed information daily to a massive advertising ecosystem that tailors web site advertising as closely as possible to individual interests. The vast majority want considerably more control over our information. We nonetheless routinely enter pay-with-data exchanges when we visit CNN.com, use Gmail, or visit any of a vast number of other websites. Why? And, what, if anything, should we do about it? We answer both questions by describing pay-with-data exchanges …

Threats Escalate: Corporate Information Technology Governance Under Fire, Lawrence J. Trautman

Lawrence J. Trautman Sr.

In a previous publication The Board’s Responsibility for Information Technology Governance, (with Kara Altenbaumer-Price) we examined: The IT Governance Institute’s Executive Summary and Framework for Control Objectives for Information and Related Technology 4.1 (COBIT®); reviewed the Weill and Ross Corporate and Key Asset Governance Framework; and observed “that in a survey of audit executives and board members, 58 percent believed that their corporate employees had little to no understanding of how to assess risk.” We further described the new SEC rules on risk management; Congressional action on cyber security; legal basis for director’s duties and responsibilities relative to IT governance; …

Social Media Campaigns As An Emerging Alternative To Litigation, Michael Tristan Morales

Tristan Morales

This article analyzes the likely impact of social media on the legal arena. In particular, it seeks to identify the extent to which social media campaigns might emerge as a viable alternative to litigation in cases where an injury occurs. The Internet has given individuals an easily accessible and broadly impactful platform for voicing allegations of indignity and injustice. By exploring the impact of social media campaigns on two areas of law in which litigation has long been deemed invaluable, consumer protection and employment law, this article seeks to demonstrate that the Internet might also soon overhaul the way we …

Privacy And Data Protection In Business: Laws And Practices (Sample Chapters), Jonathan I. Ezor

Jonathan I. Ezor

In the fields of digital privacy and data protection in the business world, effective compliance and risk management require not only knowledge of applicable laws and regulations, but at least a basic understanding of relevant technologies and the processes of the company or other organization that is collecting and/or using the personal information or monitoring behavior. This book is structured to provide a framework for law and other students to both learn the law and place it in the necessary technological and practical context, divided into topic areas such as children’s privacy, health information, governmental requirements, employee data and more. …

2 Standards 1 Cup: How Geotargeting Will End The Battle Between National And Local Obscenity Standards, Joseph Mason Kjar

J. Mason Kjar

The First Amendment guarantees the right to free speech—but that protection is not absolute. Some speech is banned outright, such as child pornography. Other speech is nearly fully protected, such as erotic speech. Caught in the middle of the two is obscene speech, which can be owned in the privacy of one’s home, but cannot be disseminated publicly.

The line between obscenity and eroticism is hard to pinpoint, and varies from community to community. In general, the process of analyzing whether a work is obscene includes asking whether the content violates the community standards of the local geographic area where …

Facebook Meets The Nlrb: Employee Online Communications And Unfair Labor Practices, Robert Sprague

Robert Sprague

In the past eighteen months, the National Labor Relations Board (“NLRB”) has received approximately one hundred charges from employees that were disciplined or fired as a result of their work-related online communications, principally through Facebook. These and other charges have resulted in twenty-one NLRB Office of the General Counsel Advice Memoranda, ten General Counsel reviews, four Administrative Law Judge (“ALJ”) decisions, and one Board decision, all addressing employee use of social media. This Article is the first to examine in detail those employee charges and the thirty-six incidents addressed by the Office of the General Counsel, the ALJs, and the …

Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert Sloan

Richard Warner

When you download the free audio recording software from Audacity, you agree that Audacity may collect your information and use it to send you advertising. Billions of such pay-with-data exchanges feed information daily to a massive advertising ecosystem that tailors web site advertising as closely as possible to individual interests. The vast majority want considerably more control over our information. We nonetheless routinely enter pay-with-data exchanges when we visit CNN.com, use Gmail, or visit any of a vast number of other websites. Why? And, what, if anything, should we do about it? We answer both questions by describing pay-with-data exchanges …

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge R. Roig

Jorge R Roig

Swimming Upstream: Negotiating Music Licenses For Interactive Streaming In The United States And Canada. How Copyrights Holders Can Participate In New Media And Still Protect Their Rights., Daniela Paola Oliva

Daniela Oliva

This article compares the music licensing process for interactive streaming in Canada and the United States. Unbeknownst to many, the process of acquiring a music license for interactive streaming in Canada and the United States is similar.

The unique portion of this article discusses the reasons why Canada may not have been the primary destination for interactive streaming companies. The article also discusses the benefits and windfalls of interactive streaming. Ultimately, copyright holders have the ability to negotiate with interactive streaming companies to attempt to receive a fair licensing rate. This article emphasizes that copyright holders should familiarize themselves with …

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …