Internet Law Commons^™

What's Software Got To Do With It? The Ali Principles Of The Law Of Software Contracting, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In May, 2009, the American Law Institute (“ALI”) approved its Principles of the Law of Software Contracts (“Principles”). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (“UCC”) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (“UCITA”) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states …

Government Speech 2.0, Helen L. Norton, Danielle Keats Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Mainstreaming Privacy Torts, Danielle Keats Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Cyber Civil Rights: Looking Forward, Danielle Keats Citron

Faculty Scholarship

The Cyber Civil Rights conference raised many important questions about the practical and normative value of seeing online harassment as a discrimination problem. In these remarks, I highlight and address two important issues that must be tackled before moving forward with a cyber civil rights agenda. The first concerns the practical—whether we, in fact, have useful antidiscrimination tools at the state and federal level and, if not, how we might conceive of new ones. The second involves the normative—whether we should invoke technological solutions, such as traceability anonymity, as part of a cyber civil rights agenda given their potential risks.

Legal Implications Of The Use Of Social Media: Minimizing The Legal Risks For Employers And Employees, Damian R. Laplaca, Noah Winkeller

Proxy

No abstract provided.

Cyberspace Property Rights: Private Property Interests In The Context Of Internet Webpages, Taylor E. White

Proxy

No abstract provided.

Trusting (And Verifying) Online Intermediaries' Policing, Frank A. Pasquale

Faculty Scholarship

All is not well in the land of online self-regulation. However competently internet intermediaries police their sites, nagging questions will remain about their fairness and objectivity in doing so. Is Comcast blocking BitTorrent to stop infringement, to manage traffic, or to decrease access to content that competes with its own for viewers? How much digital due process does Google need to give a site it accuses of harboring malware? If Facebook censors a video of war carnage, is that a token of respect for the wounded or one more reflexive effort of a major company to ingratiate itself with the …

Privacy As Product Safety, James Grimmelmann

Faculty Scholarship

Online social media confound many of our familiar expectaitons about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

Advancing Consumer Interests Through Ubiquitous Broadband: The Need For A New Spectrum, Meredith Attwell Baker

Federal Communications Law Journal

Comprehensive and long-term spectrum reform can play a critical role in the FCC's development of a National Broadband Plan and in its consideration of Open Internet rules. More efficient and intensive use of the nation's spectrum resources would help provide a path to greater broadband deployment, competition and innovation for all consumers. Wireless and mobile technologies hold great promise to offer consumers new services to complement, extend, or even replace existing broadband offerings. A comprehensive review of the nation's spectrum policy is, therefore, necessary to ensure that wireless and mobile broadband services are not hamstrung by outdated rules or command-and-control …

Communication Indecency: Why The Communications Decency Act, And The Judicial Interpretation Of It, Has Led To A Lawless Internet In The Area Of Defamation, Colby Ferris

Barry Law Review

First, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making.

A Portrait Of The Internet As A Young Man, Ann Bartow

Law Faculty Scholarship

In brief, the core theory of Jonathan Zittrain’s1 2008 book The Future of the Internet - and How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be “We have to regulate the Internet to preserve its open, unregulated nature.” Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes …

Computer Hacking As A Deceptive Device: Why The Courts Must Give Computers Legal Consciousness To Hold Hackers Liable For Insider Trading, Farid Sharaby

McGeorge Law Review

No abstract provided.

A New Approach To Data Security Breaches, Gideon Emcee Christian

Canadian Journal of Law and Technology

This article examines the problems associated with data security breaches from two different, but not mutually exclusive, perspectives. The first part of the article examines the need for notification in the event of a data security breach and proposes an amendment of the Personal Information Protection and Electronic Document Act (PIPEDA) to create a legal, or statutory, obligation in Canada to compel disclosure or notification of data security breaches. My recommendations are based on the examination of legislation from other legal jurisdictions, highlighting, where necessary, the shortcomings of the legislation, which ought to be taken into consideration in amending PIPEDA …

Cyberwar Policy, 27 J. Marshall J. Computer & Info. L. 303 (2010), Matthew Borton, Samuel Liles, Sydney Liles

UIC John Marshall Journal of Information Technology & Privacy Law

Cyberwarfare is a very real threat to the security of the nation. Yet there is confusion and disagreement as to which government body is most appropriate to assume the cyberwar mission. The Strategy to Secure Cyberspace treats the threat primarily as a criminal issue, and assigns responsibility to the Department of Homeland Security. The National Defense Strategy implies that cyberwarfare is a military issue. Both documents may be correct, depending on the case. The cyberspace terrain transcends boundaries, quickly blurring the line between civil or criminal action and an act of war, leaving the government with the issue of assigning …

Law School & The Web Of Group Affiliation: Socializing, Socialization, And Social Network Site Use Among Law Students, 27 J. Marshall J. Computer & Info. L. 325 (2010), Eric M. Fink

UIC John Marshall Journal of Information Technology & Privacy Law

Online social network sites (“SNS”) have emerged as a significant socio-technical phenomenon in the past several years. Scholars from various disciplines have examined these sites to develop a better understanding of their social significance and implications from a variety of perspectives. Within the burgeoning field of SNS studies, one strand of work focuses on the place of SNSs in students’ educational experiences and the potential pedagogical applications of SNSs. However, the SNS phenomenon generally, and its educational/pedagogical significance in particular, have received scant attention from legal scholars. This article examines the place of SNSs within the contemporary law school experience, …

Firearm Transaction Disclosure In The Digital Age: Should The Government Know What Is In Your Home?, 27 J. Marshall J. Computer & Info. L. 497 (2010), Elaine Vullmahn

UIC John Marshall Journal of Information Technology & Privacy Law

This comment examines the primary arguments for continuing to prohibit the federal government from establishing a federal firearm registry. The Background section of this comment surveys the development of laws restricting firearm sales and requiring federal firearm licensed dealers to maintain pertinent records. This section also describes how, if enacted, the Blair Holt’s Firearm Licensing and Registration Act of 2009, known as H.R. 45, would, through the creation of federal firearm registry, expose electronic records of private citizens’ firearm purchases and ownership to possible government abuse. The Analysis section examines why H.R. 45 is not the correct means for achieving …

The Cathedral And The Bizarre: An Examination Of The "Viral" Aspects Of The Gpl, 27 J. Marshall J. Computer & Info. L. 349 (2010), Michael F. Morgan

UIC John Marshall Journal of Information Technology & Privacy Law

While there is a growing body of literature dealing with the General Public License (“GPL”), the potential viral effects of the GPL do not appear to have been analyzed in a detailed technical manner. This paper will attempt to demonstrate that a proper legal analysis of the viral effects of the GPL is dependent on a detailed technical understanding of the specific mechanisms used for each type of program-to-program interaction. Once these technical mechanisms are properly understood it will then be possible to identify the applicable copyright law needed to assess the viral effects of the GPL.

How Safe Is This Shore? - Data Protection And Bpos In India, 27 J. Marshall J. Computer & Info. L. 539 (2010), Kritika Bharadwaj

UIC John Marshall Journal of Information Technology & Privacy Law

India has one of the fastest growing demographics of personal computer and Internet usage, following the U.S. and the U.K. In the light of this progress, there is no doubt that India has benefited from the worldwide process of outsourcing. On the same note, the service offered by India has rendered her indispensible to countries around the world, including the U.S. and the U.K. However, where convenience, speed, and accessibility are taken for granted in this digital era, this paradigm shift has consequently resulted in changes in its management and control, safeguard measures, and a surge of unprecedented threats and …

Cyber Fatwās And Classical Islamic Jurisprudence, 27 J. Marshall J. Computer & Info. L. 577 (2010), Derek John Illar

UIC John Marshall Journal of Information Technology & Privacy Law

The first section of this paper will explain what fatwâs are, why they are important, and what is the relationship between fatwâs and the Islamic judiciary. This section will also address who can issue such opinions and how scholars reach their conclusions. In the second part of this paper, I will explore the recent emergence of cyber fatwâs. This section specifically will focus on how Muslims have used this medium and how fatwâs have manifested themselves therein. The third portion of this paper will identity the problems that cyber fatwâs create and why they fail to comport with particular tenets …

An Evolutionary Study Of Cloud Computing Services Privacy Terms, 27 J. Marshall J. Computer & Info. L. 593 (2010), Konstantinos K. Stylianou

UIC John Marshall Journal of Information Technology & Privacy Law

This paper examines the evolution of a number of cloud computing services’ terms of use with the aim to discern whether they offer less or more (or equal) privacy safeguards. To better highlight the changes cloud computing has brought about, I focus on those privacy terms that relate to the special modus operandi of cloud services. This paper proceeds in three parts. Part I identifies the special ways by which cloud computing challenges privacy. Part II discusses a series of privacy terms commonly found in the sampled cloud computing services and follows their evolution by comparing previous versions where available. …

Increasing Access To Startup Financing Through Intellectual Property Securitization, 27 J. Marshall J. Computer & Info. L. 613 (2010), Kyle Tondo-Kramer

UIC John Marshall Journal of Information Technology & Privacy Law

This paper will discuss how a private company running a single, nationwide database for filing financing agreements can ease the burden on creditors and pave the way for more creditors to enter this market. Part two offers a brief overview of how intellectual property securitization works and some of the impediments to using this type of securitization. Part three proposes a possible solution to the problem creditors face regarding the filing of a financing statement when attempting to securitize intellectual property, and provides an in depth analysis as to why the suggestion that a private company runs a single, nationwide …

300 Years Of Copyright Law? A Not So Modest Proposal For Reform, 28 J. Marshall J. Computer & Info. L. 1 (2010), James Gh Griffin

UIC John Marshall Journal of Information Technology & Privacy Law

2010 sees the three hundredth anniversary of the U.K.'s Statute of Anne 1710. This paper suggests that with the increased ability of content recipients to re-use works, there is a need to readdress the concerns of stakeholders, namely authors, publishers and content recipients. The paper sets out in detail how this should be achieved. To do so, it utilises the notion of creativity as the benchmark by which to balance the interests of stakeholders. This has been used in early eighteenth century case law in the U.K., and there are also other historical and theoretical justifications. The paper then proceeds …

The Olympic Meddle: The International Olympic Committee's Intrusion Of Athletes' Privacy Through The Discriminatory Practice Of Gender Verification Testing, 28 J. Marshall J. Computer & Info. L. 49 (2010), Raheel Saleem

UIC John Marshall Journal of Information Technology & Privacy Law

The IOC and the IAAF act as governing bodies for athletes and, therefore, are innately responsible for their actions. However, the gender verification rule exemplifies that irresponsible actions by these governing agencies adversely effects its athletes. The gender verification rule empowers both the IOC and the IAAF to make life-changing decisions without any restriction, leaving athletes susceptible to the unfettered power and abuse of the rule. The legal foundation established by the international human rights declarations support the argument that gender verification testing must be abolished because of its embedded discrimination and intrusive nature. An application of the ICCPR provides …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 28 J. Marshall J. Computer & Info. L. 81 (2010), Erin Murphy-Hillstrom, Whitney Hutchinson, Efthymios Katsarelis, Amber Lynn Wagner, Panagiota Kelali

UIC John Marshall Journal of Information Technology & Privacy Law

Petitioner, Aaron Murphy, appeals to the Marshall Supreme Court from a decision affirming the grant of summary judgment in favor of Respondent, MarshCODE, on his claims of defamation, false light invasion of privacy, and breach of contract. Thus, there are now three issues before the Marshall Supreme Court. The first two issues concern whether an individual can maintain an action of defamation and false light invasion of privacy when the false statement arose because of a computer malfunction. The last issue concerns whether the unilateral modification of a privacy agreement constitutes a breach of contract when assent to the modification …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Petitioner, 28 J. Marshall J. Computer & Info. L. 119 (2010), Kelly Foss, Vince Lombardozzi, Jared Palmer

UIC John Marshall Journal of Information Technology & Privacy Law

The circuit court erred when it granted summary judgment in favor of MarshCODE because Mr. Murphy has demonstrated facts to support the elements of the (1) defamation, (2) false light invasion of privacy, and (3) breach of contract claims. First, Mr. Murphy has provided facts to support the defamation claim. MarshCODE made a false and defamatory statement about Mr. Murphy when it told Ms. Who that he was her father. Because this matter concerns Mr. Murphy's private life, a negligence standard applies rather than the First Amendment's actual malice standard. Mr. Murphy has demonstrated that MarshCODE acted either negligently or …

The Twenty-Ninth Annual John Marshall International Moot Court Competition In Information Technology And Privacy Law: Brief For Respondent, 28 J. Marshall J. Computer & Info. L. 151 (2010), Kimberly Hodgman, Jody Rodenberg, Erin Tyler

UIC John Marshall Journal of Information Technology & Privacy Law

The First District Court of Appeals properly affirmed summary judgment on behalf of MarshCODE because Appellant failed to raise a genuine issue of material fact on his defamation claim. First, MarshCODE's accidental disclosure of information, which implied that Appellant participated in premarital sex or had a homosexual child, was not defamatory because an average person would not lower his estimation or be deterred from associating with Appellant based on such a statement. Second, no publication was made because MarshCODE did not act with negligence and was unaware of the program malfunction that resulted in the release of the information. Third, …

Protecting Consumers From Spyware: A Proposed Consumer Digital Trespass Act, 28 J. Marshall J. Computer & Info. L. 185 (2010), Richard G. Kunkel

UIC John Marshall Journal of Information Technology & Privacy Law

“Spyware” is a broad term used to describe software that resides on a user’s computer and monitors the user’s online behavior. Though spyware may be helpful or benign, it can also be used for malicious purposes, commonly classified as “malware”. Consumers, who lack sophistication to avoid unintentionally downloading spyware, are especially vulnerable to the threat of malware. In lieu of this threat, it is important to understand the nature and scope of spyware problems affecting consumers. The paper will discuss how common law tort theories of trespass and trespass to chattel are difficult to apply to spyware, and how a …

Safeguarding "The Precious": Counsel On Law Journal Publication Agreements In Digital Times, 28 J. Marshall J. Computer & Info. L. 217 (2010), Michael N. Widener

UIC John Marshall Journal of Information Technology & Privacy Law

Heaping scholarship fills the academic print and online press about where legal scholars should publish and how to have one’s paper accepted for publication. But there is scarce writing about the contractual relationship between the law journal and the author of an accepted paper. This may be due in part to broadly misconstrued or ignored publication agrees, or perhaps that the business relationship is unworthy of scholarly attention. Regardless, this paper introduces a pragmatist’s perspective on evaluating and revising publication agreements, and informs student editors how publication agreements accomplish a journal’s objectives, based on current copyright law. Finally, this paper …

Interpretation & The Internet, 28 J. Marshall J. Computer & Info. L. 251 (2010), Cameron Hutchison

UIC John Marshall Journal of Information Technology & Privacy Law

Twenty years after the advent of the Internet, the revolutionary nature of the technology can no longer be in doubt. In spite of the ‘differentness” of the Internet, courts have proven adept at adapting extant law to the features and demands of this new technology. This paper will chronicle the differences between the Internet and other technologies which might, depending on the legal issue, justify the exclusion of the Internet from established rules on the basis of analogical reasoning. Two approaches to legal interpretation – literalism and purposivism—will be discussed in light of this new technology, with an explanation as …

Internet Filtering: The Ineffectiveness Of Wto Remedies And The Availability Of Alternative Tort Remedies, 28 J. Marshall J. Computer & Info. L. 273 (2010), Kristen A. Knapp

UIC John Marshall Journal of Information Technology & Privacy Law

Empirical studies have shown that government Internet filtering is increasing worldwide. Internet Service Providers have progressively begun to take on filtering responsibility in a quasi-governmental capacity. As filtering has increased, some have begun to question whether Internet filtering might violate WTO commitments under the General Agreement on Trade in Services (“GATS Agreement”). This paper will provide technical background on how Internet filtering is accomplished in practice, and explain the GATS Agreement that was held to govern Internet filtering in the U.S.-Gambling Services decision. This paper will further survey the current range of U.S. filtering actions and detail why tort remedies …