Internet Law Commons^™

Will Nfts Solve Some Of The Age-Old Problems In Art Law?, Ursula Von Schlenhenried

SMU Science and Technology Law Review

Non-Fungible Tokens, or NFTs, are digital assets based on blockchain technology and are steadily growing in popularity in the art market. The technology has created a novel way of establishing ownership through tamper-resistant cryptographic records. A majority of NFTs are created via the Ethereum protocol and are most notably associated with other assets, such as digital art. Even prominent auction houses, like Christie’s, have joined the action. NFTs offer a whole host of new and interesting legal concerns, including questions surrounding smart contracts. The concerns surrounding traditional art, however, are long-standing and include (but are not limited to) provenance, authenticity, …

Oculogica: An Eye-Catching Innovation In Health Care And The Privacy Implications Of Artificial Intelligence And Machine Learning In Diagnostics For The Human Brain, Samantha V. Ettari, Elijah Roden, Vishal Ahuja, Uzma Samadani

SMU Science and Technology Law Review

This article explores the use of Artificial Intelligence (AI) in emerging eye-tracking diagnostic technology, with a focus on both the patient data privacy and security regulations that firms, specifically device inventors and manufacturers, may face and how such firms can address the developing privacy and regulatory legal challenges. In addition, we discuss the ethical considerations of algorithmic bias, the impact such biases have on society and emerging technology, along with specific actions companies should take to maximize patient outcomes. Lastly, we offer a case study of Oculogica, an emerging digital health technology company—and its medical device (EyeBOX) – to illustrate …

Creating A United Front: Harmonizing The United States Regulatory Policies Surrounding Human Embryonic Stem Cell Research, Sydney Kossow

SMU Science and Technology Law Review

Stem cell therapy is an imperative development in science and medicine that is heavily regulated worldwide. With the potential to cure illnesses, help understand disease development, and advance regenerative medicine, a harmonized regulatory policy is crucial to capitalize on the benefits of stem cells. This article examines an important topic of discussion surrounding stem cell therapy and research: the political debate on how and when embryonic stem cells can be used. In addition to examining ethical challenges, this article discusses the legal challenges surrounding using embryonic stem cells to inform regenerative therapies. Specifically, this article will examine the National Institute …

Death Of The Limited License To Data: United States V. Van Buren, Nick Curley

SMU Science and Technology Law Review

The United States Supreme Court has normally viewed data as property. Yet in United States v. Van Buren, the Court abandoned the property law angle. Van Buren included examination of the Computer Fraud and Abuse Act’s applicability to a police officer who accepted a bribe from undercover agents to look up a phony license plate. The Court held that under the CFAA someone only “exceeds authorized access” when they properly access a computer and then improperly access files “that are off limits to [them].”

This Case Note explores why the Supreme Court should not have abandoned the property analogy …

The Deficiencies Of Oregon Ballot Measure 110, Jacob Towles

SMU Science and Technology Law Review

In 1970, the Federal Government enacted the Controlled Substance Act (CSA), which made certain drugs and substances illegal absent a medical prescription. The control of drugs through the CSA exists to prevent harm to the public. Nonetheless, some cities and states have enacted laws that allow for the benefit of selling or pleasure of using illegal drugs to outweigh the legal ramifications.

In November 2020, The Drug Addiction Treatment and Recovery Act, also known as Oregon Ballot Measure 110 (Measure 110), made Oregon the first state in the country to decriminalize all drugs. Measure 110 was enacted with the overarching …

Blockchain Disruption: Digital Assets Are Changing How We Do Business, Nick Curley

SMU Science and Technology Law Review

Digital assets are changing the way businesses think about equity, labor, business models, and business organization. Digital assets, like Bitcoin or Ethereum, provide incredible opportunities to further align shareholders with the objectives of the entity.

Each time humanity advances its technology for ledgers, markets explode, and we witness immense wealth creation. Digital assets like Bitcoin and Ethereum are the next great step forward for ledger technology. While there are incredible opportunities to leverage this new technology, there are also incredible risks. There are many public examples of “hacks” of prominent blockchains like Ethereum and Solana. Blockchain technology has captured the …

Regulating Data Exclusivity Of Ride-Hailing Service In Indonesian Competition Law, Annisa Rahma Diasti

Indonesia Law Review

The digital ride-hailing service platforms have advanced significantly due to technological development. It resulted in lower consumer costs and better-quality service. Thus, consumers opted for such platforms more than the conventional transportation, resulting in their exponential growth over the years such as Gojek and Grab in Indonesia. Their strong market position was achieved quickly, facilitated by innovation advantages such as indirect network effects and algorithm-based analysis of users’ past data. Ultimately, data has become a barrier for potential competitors to entering the market. Simultaneously, the incumbents or the dominant market holders likely to use a technology-based strategy by keeping access …

Legal Introspection Towards The Development Of Right To Privacy As Fundamental Right In India, Payal Thaorey

Indonesia Law Review

Privacy of the individual is an essential aspect of dignity. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. The journey of right to privacy has been …

Establishing A Legitimate Indonesia’S Government Electronic Surveillance Regulation: A Comparison With The U.S. Legal Practices, Citra Yuda Nur Fatihah

Indonesia Law Review

Cybersecurity and privacy have now become a matter of increasing concern for citizens, the private sector, and the Indonesian government. The government is currently struggling to combat cyberattacks and data breaches. Indonesia is, in fact, in the early stages of developing a national cybersecurity strategy. The legal framework for cybersecurity in Indonesia is still weak. The one and only legal basis for regulating cybersecurity, privacy, and security, in Indonesia so far is the Electronic Information and Transactions Law No. 11/2008 and its revised version Law No.19/2016. Furthermore, the government through the Indonesian Ministry of Communication and Information has just issued …

Defend Forward & Sovereignty: How America’S Cyberwar Strategy Upholds International Law, Elya Taichman

University of Miami Inter-American Law Review

To thwart a seemingly neve rending bombardment of cyberattacks, the U.S. Department of Defense recently implemented a new strategy – defending forward. This approach demands persistently engaging the enemy on a daily basis to disrupt cyber activity. Rather than waiting to be attacked, the United States is bringing the fight to the enemy. However, this strategy poses fascinating and complex questions of international law. In particular, because most defend forward operations fall within the gray zone of warfare, it remains unclear whether these operations violate the sovereignty of American adversaries or even third party nation states in whose cyberspace U.S. …

Analysis Of Section 230 Under A Theory Of Premises Liability: A Focus On Herrick V.Grindr And Daniel V. Armslist, Kassandra C. Cabrera

University of Miami Business Law Review

Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to …

Indiana Law’S Lubin, Sun Help Advise Kosovo Government On Country’S Cybersecurity Act, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

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 …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Content Moderation Remedies, Eric Goldman

Michigan Technology Law Review

This Article addresses a critical but underexplored aspect of content moderation: if a user’s online content or actions violate an Internet service’s rules, what should happen next? The longstanding expectation is that Internet services should remove violative content or accounts from their services as quickly as possible, and many laws mandate that result. However, Internet services have a wide range of other options—what I call “remedies”—they can use to redress content or accounts that violate the applicable rules. This Article describes dozens of remedies that Internet services have actually imposed. It then provides a normative framework to help Internet services …

Individuals As Gatekeepers Against Data Misuse, Ying Hu

Michigan Technology Law Review

This article makes a case for treating individual data subjects as gatekeepers against misuse of personal data. Imposing gatekeeper responsibility on individuals is most useful where (a) the primary wrongdoers engage in data misuse intentionally or recklessly; (b) misuse of personal data is likely to lead to serious harm; and (c) one or more individuals are able to detect and prevent data misuse at a reasonable cost.

As gatekeepers, individuals should have a legal duty to take reasonable measures to prevent data misuse where they are aware of facts indicating that the person seeking personal data from them is highly …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Copyright’S Techno-Pessimist Creep, Xiyin Tang

Fordham Law Review

Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation—and may serve as precedent for …

Seeking A Safe Harbor In A Widening Sea: Unpacking The Schrems Saga And What It Means For Transatlantic Relations And Global Cybersecurity, Scott J. Shackelford

William & Mary Bill of Rights Journal

The Article is structured as follows. Part I examines Schrems I (Schrems v. Data Protection Commissioner) and the fall of the Safe Harbor regime. Part II analyzes Schrems II (Data Protection Commissioner v. Facebook & Max Schrems) along with the rise and fall of Privacy Shield. Part III focuses on opportunities to bridge the data governance divide and present a united front to help ensure a free, open, interoperable, secure, and resilient vision for cyberspace.

This abstract has been adapted from the author's introduction.

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur

Brooklyn Journal of International Law

With the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary …

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 …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez

Brooklyn Journal of International Law

Social media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in …

Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer

Journal of Law and Policy

This Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, …

Securities Law: Overview And Contemporary Issues, Neal Newman, Lawrence J. Trautman

Faculty Scholarship

This is not your grandfather’s SEC anymore. Rapid technological change has resulted in novel regulatory issues and challenges, as law and policy struggles to keep pace. The U.S. Securities and Exchange Commission (SEC) reports that “the U.S. capital markets are the deepest, most dynamic, and most liquid in the world. They also have evolved to become increasingly fast and extraordinarily complex. It is our job to be responsive and innovative in the face of significant market developments and trends.” With global markets increasingly interdependent and interconnected and, “as technological advancements and commercial developments have changed how our securities markets operate, …

Gdpr, Pipl & Lgpd: Privacy Regulations & Policies Across The Globe, Raymond H. Geistel

Cybersecurity Undergraduate Research Showcase

Several privacy laws around the world are adopting similar regulations to the GPDR; this has effects on privacy policies of companies providing services in across multiple countries & continents. While these regulations share many attributes, their differing requirements can make things difficult for companies regarding said policies. Automation could be a potential solution to both analyze and compare regulations from different nations & international organizations, analyze and monitor privacy policy adherence to said regulations.

Deep In The Heart Of North America: Texas And The Future Of North American Energy Trade, Guillermo J. Garcia Sanchez, James W. Coleman

Mission Foods Texas-Mexico Center Research

Texas, the heart of North American energy markets, has recently emerged from history’s biggest oil boom, and is becoming the crossroads for an increasingly two-way trade in oil and gas. Texas and Mexico, in particular have much to gain from expanded energy trade. This report shows how energy law changes in the U.S. and Mexico present under-studied dangers to cross-border energy trade and will set an agenda for legal reform to enable mutually beneficial fuel and power trade.

Protecting Sentient Artificial Intelligence: A Survey Of Lay Intuitions On Standing, Personhood, And General Legal Protection, Eric H. Martinez, Christoph Winter

Faculty Scholarship

To what extent, if any, should the law protect sentient artificial intelligence (that is, AI that can feel pleasure or pain)? Here we surveyed United States adults (n = 1,061) on their views regarding granting 1) general legal protection, 2) legal personhood, and 3) standing to bring forth a lawsuit, with respect to sentient AI and eight other groups: humans in the jurisdiction, humans outside the jurisdiction, corporations, unions, non-human animals, the environment, humans living in the near future, and humans living in the far future. Roughly one-third of participants endorsed granting personhood and standing to sentient AI (assuming …