Internet Law Commons^™

Access To Data Across Borders: The Critical Role For Congress To Play Now, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

One Centimeter Over My Back Yard: Where Does Federal Preemption Of State Drone Regulation Start?, Henry H. Perritt Jr.

All Faculty Scholarship

The proliferation of cheap civilian drones and their obvious utility for precision agriculture, motion picture and television production, aerial surveying, newsgathering, utility infrastructure inspection, and disaster relief has accelerated the FAA’s sluggish effort to develop a proposal for generally applicable rules and caused it to grant more than 600 “section 333 exemptions” permitting commercial drone flight before its rules are finalized.

Federal preemption in the field of aviation safety regulation is generally assumed, but political pressure on states and municipalities to regulate drones and the ability of this revolutionary aviation technology to open up space close to the ground for …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

All Faculty Scholarship

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

Drones, Henry H. Perritt Jr., Eliot O. Sprague

All Faculty Scholarship

Abstract

Drone technology is evolving rapidly. Microdrones—what the FAA calls “sUAS”—already on the market at the $1,000 level, have the capability to supplement manned helicopters in support of public safety operations, news reporting, and powerline and pipeline patrol, when manned helicopter support is infeasible, untimely, or unsafe.

Larger drones–"machodrones”–are not yet available outside battlefield and counterterrorism spaces. Approximating the size of manned helicopters, but without pilots, or with human pilots being optional, their design is still in its infancy as designers await greater clarity in the regulatory requirements that will drive airworthiness certification.

This article evaluates drone technology and design …

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

All Faculty Scholarship

Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …

The Price-Anderson Public Liability Action And Strict Liability, Donald E. Jose, Michael A. Garza

ExpressO

Nuclear Power and nuclear weapons plants seem to be an ultrahazardous activity for which strict liability should apply. However, unusual provisions of the Price-Anderson Act serve to shield nuclear power and nuclear weapons plants and associated activities from strict liability unless the federaq agency regulating the activity determins that a special from of strict liability can be applied.

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

The Need For Software Innovation Policy, Christopher Riley

ExpressO

This paper examines the current legal treatment of software innovation. It argues that recent judicial standards for the regulation of software innovation do not adequately protect innovation. It presents an original standard for the regulation of software innovation, one intended to guide judicial decisions in contributory copyright liability, in interpretations of the Digital Millennium Copyright Act, and in every courtroom where a developer is on trial for the mere creation and distribution of software. The standard presented in this paper separates the questions of liability and remedy in order to produce an optimal dynamic balance of interests.

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens

ExpressO

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Brain Imaging And Privacy: How Recent Advances In Neuroimaging Implicate Privacy Concerns , David P. Finn

ExpressO

This paper deals with recent advances in neuroimaging technologies which could begin to implicate privacy concerns in the near future.

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo

ExpressO

In the past ten years there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. Many products of genetic engineering have been modified to possess traits that increase their ability to reproduce and survive in the environment. By genetically …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

In Sickness, Health, And Cyberspace: Protecting The Security Of Electronic Private Health Information, Sharona Hoffman, Andy Podgurski

ExpressO

The electronic processing of health information provides considerable benefits to patients and health care providers at the same time that it creates serious risks to the confidentiality, integrity, and availability of the data. The Internet provides a conduit for rapid and uncontrolled dispersion and trafficking of illicitly-obtained private health information, with far-reaching consequences to the unsuspecting victims. In order to address such threats to electronic private health information, the U.S. Department of Health and Human Services enacted the HIPAA Security Rule, which thus far has received little attention in the legal literature. This article presents a critique of the Security …

Defining Fair Use In The Digital Era, Joseph James Raffetto

ExpressO

The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …

Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu

ExpressO

The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as …

Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel

ExpressO

Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the court applies …

Performing Rights Societies And The Digital Environment, Philippe Gilliéron

ExpressO

No abstract provided.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

A Default-Logic Paradigm For Legal Reasoning And Factfinding, Vern R. Walker

ExpressO

Unlike research in linguistics and artificial intelligence, legal research has not used advances in logical theory very effectively. This article uses default logic to develop a paradigm for analyzing all aspects of legal reasoning, including factfinding. The article provides a formal model that integrates legal rules and policies with the evaluation of both expert and non-expert evidence – whether the reasoning occurs in courts or administrative agencies, and whether in domestic, foreign, or international legal systems. This paradigm can standardize the representation of legal reasoning, guide empirical research into the dynamics of such reasoning, and put the representations and research …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

Identity Theft And Consumer Protection: Finding Sensible Approaches To Safeguard Personal Data In The United States And Canada, Kamaal Zaidi

ExpressO

This paper examines identity theft in both the United States and Canada. Various examples of commercial fraud and scams are discussed in the context of a growing trend of identity thieves assuming identities of innocent consumers. As such, various pieces of legislation and consumer initiatives (involving online consumer complaint mechanisms)in U.S. and Canadian jurisdictions are highlighted to demonstrate the pursuit towards broader consumer protection of personal data used in daily commercial transactions. The author argues that these modern efforts to safeguard consumers from identity theft is a progressive measure that will continue to afford increasing protections for consumer personal data, …