Computer Law Commons^™

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

Reframing Technology-Facilitated Gender-Based Violence At The Intersections Of Law & Society, Jane Bailey, Carys Craig, Suzie Dunn, Sonia Lawrence

Canadian Journal of Law and Technology

This introductory article proceeds in three parts. First, it discusses the origins of this special issue as part of a multi-event, SSHRC-funded conference that focused on pushing beyond a narrow conception of TFGBV; rather than approaching TFGBV as solely an issue of interpersonal behaviours, the animating objective of the conference was to examine the structural, systemic, and design factors that contribute to TFGBV. Second, it explores the importance and promise of reframing TFGBV in this way through intersectional and structural lenses. Third, it briefly highlights some of the key insights from each of the contributions in this special issue. It …

Data Breach Notification Laws And The Quantum Decryption Problem, Phillip Harmon

Washington and Lee Law Review

In the United States, state data breach notification laws protect citizens by forcing businesses to notify those citizens when their personal information has been compromised. These laws almost universally include an exception for encrypted personal data. Modern encryption methods make encrypted data largely useless, and the notification laws aim to encourage good encryption practices.

This Note challenges the wisdom of laws that place blind faith in the continued infallibility of encryption. For decades, Shor’s algorithm has promised polynomial-time factoring once a sufficiently powerful quantum computer can be built. Competing laboratories around the world steadily continue to march toward this end. …

Comment: The Necessary Evolution Of State Data Breach Notification Laws: Keeping Pace With New Cyber Threats, Quantum Decryption, And The Rapid Expansion Of Technology, Beth Burgin Waller, Elaine Mccafferty

Washington and Lee Law Review

The legal framework that was built almost two decades ago now struggles to keep pace with the rapid expansion of technology, including quantum computing and artificial intelligence, and an ever-evolving cyber threat landscape. In 2002, California passed the first data breach notification law, with all fifty states following suit to require notice of unauthorized access to and acquisition of an individual’s personal information.1 These data breach notification laws, originally designed to capture one-off unauthorized views of data in a computerized database, were not built to address PowerShell scripts by cyber terrorists run across thousands of servers, leaving automated accessed data …

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

“I Bet You Don’T Get What We Get”: An Intersectional Analysis Of Technology-Facilitated Violence Experienced By Racialized Women Anti- Violence Online Activists In Canada, Nasreen Rajani

Canadian Journal of Law and Technology

Despite growing attention to violence that women face in online settings, a relatively small proportion of academic work centres on the experiences and perspectives of racialized women in Canada. Informed by an intersectional framework, I draw on semi-structured interviews with nine women across Canada, all of whom are involved in anti-violence online activism, about their experiences of technology-facilitated violence (TFV). Their experiences revealed less prominent narratives, including instances of TFV beyond instances of intimate partner violence (IPV) and beyond sources of anonymous trolling by supposed white men, such as violence perpetrated by peers, white women, and racialized men. In this …

Intimate Images And Authors’ Rights: Non- Consensual Disclosure And The Copyright Disconnect, Meghan Sali

Canadian Journal of Law and Technology

This article responds to a brand of legal realpolitik that says using property law to respond to the non-consensual distribution of intimate images (NCDII) is appropriate and even necessary, because its remedial frameworks are well developed and provide the relief that is often most sought after by targets of an assault: the immediate removal of photos from online platforms. While some targets are not considered the ‘‘authors’’ of their intimate images, most of the images that are the subject of NCDII are selfies, taken by the target themselves. In these cases, that person rightfully owns the copyright in those images …

On The Internet, Nobody Knows You Are A Dog: Contested Authorship Of Digital Evidence In Cases Of Gender-Based Violence, Suzie Dunn, Moira Aikenhead

Canadian Journal of Law and Technology

We examine various aspects of digital evidence at GBV trials, drawing on relevant Canadian criminal case law. First, we describe some of the unique challenges related to electronic documents generally with respect to determining authorship. Second, we review some of the historical and ongoing practices within the criminal justice system that rely on harmful gendered myths about GBV and note the potential for these myths to emerge in relation to digital evidence. Third, we discuss the duty of investigating police officers to gather the necessary available digital evidence to demonstrate authorship and note potential gaps in current investigatory practices that …

Responding To Deficiencies In The Architecture Of Privacy: Co-Regulation As The Path Forward For Data Protection On Social Networking Sites, Laurent Cre ́Peau

Canadian Journal of Law and Technology

Social Networking Sites like Facebook, Twitter and the like are a ubiquitous part of contemporary culture. Yet, as exemplified on numerous occasions, most recently in the Cambridge Analytica scandal that shook Facebook in 2018, these sites pose major concerns for personal data protection. Whereas self-regulation has characterized the general regulatory mindset since the early days of the Internet, it is no longer viable given the threat social media poses to user privacy. This article notes the deficiencies of self-regulatory models of privacy and contends jurisdictions like Canada should ensure they have strong data protection regulations to adequately protect the public. …

Artificial Intelligence In Canadian Healthcare: Will The Law Protect Us From Algorithmic Bias Resulting In Discrimination?, Bradley Henderson, Colleen M. Flood, Teresa Scassa

Canadian Journal of Law and Technology

In this article, we canvas why AI may perpetuate or exacerbate extant discrimination through a review of the training, development, and implementation of healthcare-related AI applications and set out policy options to militate against such discrimination. The article is divided into eight short parts including this introduction. Part II focuses on explaining AI, some of its basic functions and processes, and its relevance to healthcare. In Part III, we define and explain the difference and relationship between algorithmic bias and data bias, both of which can result in discrimination in healthcare settings, and provide some prominent examples of healthcare-related AI …

Delineating The Legal Framework For Data Protection: A Fundamental Rights Approach Or Data Propertization?, Efe Lawrence Ogbeide

Canadian Journal of Law and Technology

The Charter of Fundamental Rights of the European Union, like other key legal instruments around the globe, grants citizens the right to privacy in Article 7. The Charter, however, further provides for the right to data protection in Article 8. Simply put, the implication of Article 8 of the Charter is that the right to data protection is a fundamental right. The central question in this article is whether data protection indeed qualifies to be categorized as a fundamental right. If not, what other approach(es) to data protection may be implemented?

From Nyan Cat To Nfts: Determining How Canada’S Cultural Property Export And Import Act Applies To Digital Works, Mitchel Fleming

Canadian Journal of Law and Technology

One of Canada’s principal pieces of legislation enacted to protect its cultural patrimony is not well equipped to deal with the rise of digital content creation. Digital works, particularly NFTs, pose a unique challenge to the established regime. This paper seeks to understand how these artistic developments fit within the current legislative framework and whether legislative action is needed to bring these revolutionary mediums within the scope of the Cultural Property Export and Import Act. Ultimately, the author concludes that while digital works may be captured by the Act under specific circumstances, the protectionist policies of the past are …

Officially Obsolete? A Critical Examination Of The Canadian Official Marks Regime And Its Waning Relevancy In Trademark Law, Maddison Tebbutt

Canadian Journal of Law and Technology

When the Trademark Act (‘‘TMA”) came about in 1985, a unique aspect of Canadian trademark law was created: the official marks regime under section 9(1)(n). The official marks regime is available to public authorities and universities as a means of sidestepping the lengthy and expensive process of trademark registration and providing special protection for official marks. Once public authorities and universities obtain an official mark through this system, they are entitled to an expansive monopoly that allows them to use their mark for commercial use, while simultaneously keeping the official mark out of the public domain. Moreover, while …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon Penney, Bruce Schneier

Articles, Book Chapters, & Popular Press

End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

Onlife Harms: Uber And Sexual Violence, Amanda Turnbull

Canadian Journal of Law and Technology

Uber markets itself as a technology company that is managed primarily by ML algorithms with the support of human engineers. Yet, in its 2019 Report, the role that its technology played in relation to sexual violence is, for all intents and purposes, absent. Likewise, solutions dealing specifically with the role of technology in facilitating gender-based violence are also missing from the series of initiatives in which Uber has invested that are aimed at preventing sexual violence. Uber was not sufficiently rigorous in defining the problem it was trying to solve. It was a missed opportunity that has resulted in continued …

Bringing Section 8 Home: An Argument For Recognizing A Reasonable Expectation Of Privacy In Metadata Collected From Smart Home Devices, Ana Qarri

Canadian Journal of Law and Technology

Internet of Things devices (also known as smart home devices) are a fast-growing trend in consumer home electronics. The information collected from these devices could prove very useful to law enforcement investigations. These individual pieces of metadata — the collection of which might appear harmless on its face — can be highly revealing when combined with other metadata or information otherwise available to law enforcement. This article builds an argument in favour of recognizing a reasonable expectation of privacy in metadata collected from smart home devices under section 8 of the Canadian Charter of Rights and Freedoms. This article presents …

Let The Machines Do The Dirty Work: Social Media, Machine Learning Technology And The Iteration Of Racialized Surveillance, Subhah Wadhawan

Canadian Journal of Law and Technology

Post 9/11, where the current social and cultural temperature has constructed Islam as interchangeable with terrorism, digital intermediaries have responded with increased censorship of speech related to, emerging from, or advocating Islamic ideology. At the heart of this paper is the argument that digital intermediaries have relied on the opaqueness of machine learning technology (‘‘MLT”) to realize racialized surveillance, whereby speech concerning Islamic content has been disproportionally censored. This paper maps out how inherent biases concerning the ideology of Islam have been interwoven into the coding and machine learning used by the major tech giants. As a result of the …

Uncertain Terms, Leah R. Fowler, Jim Hawkins, Jessica L. Roberts

Notre Dame Law Review

Health apps collect massive amounts of sensitive consumer data, including information about users’ reproductive lives, mental health, and genetics. As a result, consumers in this industry may shop for privacy terms when they select a product. Yet our research reveals that many digital health tech companies reserve the right to unilaterally amend their terms of service and their privacy policies. This ability to make one-sided changes undermines the market for privacy, leaving users vulnerable. Unfortunately, the current law generally tolerates unilateral amendments, despite fairness and efficiency concerns. We therefore propose legislative, regulatory, and judicial solutions to better protect consumers of …

From The Golden Gate To London: Bridging The Gap Between Data Privacy And The Right Of Publicity, Kristin Kuraishi

Brooklyn Journal of International Law

Currently, there is no global standard or recognition for the right of publicity. Even within the United States, the recognition, scope, and protections vary by state. As the world becomes increasingly reliant on social media for news, information, communication, and recommendations, micro-influencers and non-celebrities require a way to control their developed and curated name, image, and likeness from unauthorized commercial uses by others. Advertising is occurring more frequently online, and brands recognize the power that micro-influencers have on commerce. Some countries, like the United Kingdom, do not recognize the right of publicity, potentially leaving many individuals without recourse for the …

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

The Technologization Of Insurance: An Empirical Analysis Of Big Data And Artificial Intelligence’S Impact On Cybersecurity And Privacy, Shauhin A. Talesh, Bryan Cunningham

Utah Law Review

This Article engages one of the biggest issues debated among privacy and technology scholars by offering an empirical examination of how big data and emerging technologies influence society. Although scholars explore the ways that code, technology, and information regulate society, existing research primarily focuses on the theoretical and normative challenges of big data and emerging technologies. To our knowledge, there has been very little empirical analysis of precisely how big data and technology influence society. This is not due to a lack of interest but rather a lack of disclosure by data providers and corporations that collect and use these …

Effects Of Cloud Computing In The Workforce, Kevin Rossi Acosta

Cybersecurity Undergraduate Research Showcase

In recent years, the incorporation of cloud computing and cloud services has increased in many different types of organizations and companies. This paper will focus on the philosophical, economical, and political factors that cloud computing and cloud services have in the workforce and different organizations. Based on various scholarly articles and resources it was observed that organizations used cloud computing and cloud services to increase their overall productivity as well as decrease the overall cost of their operations, as well as the different policies that were created by lawmakers to control the realm of cloud computing. The results of this …

Information Privacy In An Age Of Invisible Shopper Tracking: Who Will Pay The Price For Stores Of The Future?, Kristin Harripaul

Georgia State University Law Review

Explosive growth in technology has brought a unique opportunity to the doors of brick-and-mortar retail—a nearly $3.38 trillion industry struggling to regain relevance among modern, digitally enabled shoppers. Specifically, in-store analytics, or shopper tracking technologies, are allowing these retailers to better compete with online stores by tapping into consumer data unprecedented in the brick-and-mortar context. With these technologies, stores now have access to detailed metrics, like consumer dwell times, journeys, product engagement, product views, and demographic data such as age and gender, which can be used to optimize store operations and marketing and promotions.

Recent events, however, including a string …

Personal Data Privacy And Protective Federal Legislation: An Exploration Of Constituent Position On The Need For Legislation To Control Data Reliant Organizations Collecting And Monetizing Internet-Obtained Personal Data, Giovanni De Meo

Dissertations

In the past twenty years, the business of online personal data collection has grown at the same rapid pace as the internet itself, fostering a multibillion-dollar personal data collection and commercialization industry. Unlike many other large industries, there has been no major federal legislation enacted to monitor or control the activities of organizations dealing in this flourishing industry. The combination of these factors together with the lack of prior research encouraged this research designed to understand how much voters know about this topic and whether there is interest in seeing legislation enacted to protect individual personal data privacy.

To address …

Outsourcing Privacy, Ari Ezra Waldman

Notre Dame Law Review Reflection

An underappreciated part of the narrative of privacy managerialism—and the focus of this Essay—is the information industry’s increasing tendency to outsource privacy compliance responsibilities to technology vendors. In the last three years alone, the International Association of Privacy Professionals (IAPP) has identified more than 250 companies in the privacy technology vendor market. These companies market their products as tools to help companies comply with new privacy laws like the General Data Protection Regulation (GDPR), with consent orders from the Federal Trade Commission (FTC), and with other privacy rules from around the world. They do so by building compliance templates, pre-completed …

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

The Impact Of Schrems Ii: Next Steps For U.S. Data Privacy Law, Andraya Flor

Notre Dame Law Review

Schrems II invalidated Privacy Shield because the court found that it did not provide an “essentially equivalent” level of protection compared to the guarantees of the GDPR. The National Security Agency (NSA) operated surveillance programs that had the potential to infringe on the rights of EU subjects, and there was a lack of oversight and effective judicial remedies to protect rights of EU data subjects, which undermined Privacy Shield as a mechanism for data transfers. This Note sets aside the surveillance and national security issue, which would require resolution through a shift in overall U.S. national security law, and instead …