Yale Journal of Law and Technology: Recent submissions
Now showing items 21-40 of 127
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TRANSBORDER SEARCH: A NEW PERSPECTIVE IN LAW ENFORCEMENT?Think about the following situation: you are a German police officer investigating a serious crime. Your suspect is an American citizen using a Yahoo-e-mail-account to communicate with his criminal partners. Now you are informed that critical evidence (an e-mail) was sent to the suspect's e-mail-account and is currently stored on Yahoo's email- server in New York. It is Sunday morning and there are indications that the e-mail will be deleted by the suspect in a few hours. Traditional methods of gaining access to the vital evidence, like letters rogatory, might take too long. What do you do? Is it permissible for you as a German police officer to hack the suspect's e-mail-account and to download the incriminating e-mailfrom the server located in New York? This Article tries to find an answer to the question of when such a "transborder search" is currently admissible under public international law. It analyses the first (at least publicly known) criminal case worldwide in which a law enforcement agency (the United States Federal Bureau of Investigation) used this method to access and download evidence stored on server in a foreign country. After analysing the current legal situation the author comes to the conclusion that up to now a transborder search to access protected data is in principle inadmissible. However, there is an exception when the data are stored in the United States and extraordinary circumstances prevail. Therefore, the author's answer regarding the question above is "yes."
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WHAT'S REALLY WRONG WITH GENETIC ENHANCEMENT: A SECOND LOOK AT OUR POSTHUMAN FUTUREThis Article presents the case against genetic enhancement. It begins with a critique of Fukuyama's highly publicized work on enhancement. It then reconstructs the case for regulation, arguing that enhancement will undermine the most basic and universal sources of meaning and well-being in human life. The Article pays special attention to the law and economics scholarship, holding that the economic method will not detect certain types of harm to the human genome. The essay concludes with a policy solution that will preserve the benefits of genetic therapy while avoiding the harms of genetic enhancement.
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BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPEThe author discusses the Internet's potential equalizing effect on dispute resolution institutions. The emergence of online dispute resolution (ODR) mechanisms and virtual courts are the clearest manifestation of the Internet's influence on dispute resolution, but its influence extends beyond the immediate online environment, as is demonstrated throughout the Article by analyses of various examples and the specific case study of the Ford-Firestoned ebacle. The Ford-Firestones tory provides a rich case study for the positive potential as well as the pitfalls of resolving disputes in the nascent Internet society, and it is especially useful for dispelling the notion that the Internet will only affect technology-related disputes. The author analyzes dispute resolution institutions (courts and ADR mechanisms) as they currently exist and as they are likely to develop in the future. The Article's prediction and main thesis is that as a result of the introduction of new technologies, traditionally disempowered disputants could potentially experience greater equality in the dispute resolution institutions of the Internet society. The Article concludes with a demonstration of how disputes similar to the Ford-Firestone case study will be played out in the landscape of the future.
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MAPPING THE INFORMATION ENVIRONMENT: LEGAL ASPECTS OF MODULARIZATION AND DIGITALIZATIONThe Article highlights the language of the digital and the principle of modularization as the basic concepts which the further development of the information environment will have to pivot around, regardless of how conflicts between freedom and control are temporarily solved. Perceiving both the computer and the Internet as complex systems, the authors look at how modular design of these systems freed the functionality of applications from the physicality of infrastructures, describe the evolutionary gains adhering to modularity, and how to preserve them - elaborating on the issues of access to the cable platform for broadband Internet and to virtual networks for computer technology. Their second focus shows how digitalization of information makes possible the merger of content and its protection. Especially through the use of DRM systems, private actors can create right enforcement mechanisms independent of the State. The legal system therefore faces new and more complex relations between private will and public sovereignty. In such a merged system it is harder to maintain freedom - much like in the fusion of function and infrastructure.
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COPYRIGHT' S DIGITAL REFORMULATIONDigital technologies permit the wide distribution of perfect copies at virtually no marginal cost. Evidently this poses a problem for content providers: how could they make money if their product is freely available after its first sale? As we all know, reframing the copyright laws has become the answer. Notably, these revisions were an integrated international policy campaign, not distinct national fights. The newly extended control, based on legally reinforced digital "containers" and trade law, arguably permits those who sell content effectively to "enclose" the public domain, to insulate their business models, and to define technological development. In this article, I will argue that content providers are "recreating the bottle" around their intellectual property, using digital technologies to reinforce their business models and supplant copyright. The content industries have successfully driven political fights, dramatically strengthening their control of content in the digital era. International treaties and agreements have been leveraged to strengthen and enforce intellectual property protection, forcing a globally "harmonized" reformulation of national laws. The resulting copyright policies have not been a simple translation of the old laws and enforcement mechanisms to a new technological era. In the revision of the intellectual property laws, the content industries claimed new power to control their intellectual property.
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LESSONS FROM THE UNITED STATES TRADE POLICIES TO CONVERT A "PIRATE": THE CASE OF PHARMACEUTICAL PATENTS IN ARGENTINA.This analysis describes the radical transformations in pharmaceutical intellectual property protection in Argentina during the 1990s. Most importantly, it highlights the consequences of the use by the United States of unilateral trade weapons to pressure Argentina to adopt certain standards in this field. The enforcement or threatened enforcement of Section 301 of the US Trade Act, along with GSP restrictions, have proven to be controversial tools in protecting US interests abroad, as is demonstrated by the Argentine case. Some positive results were achieved for United States' interests but the United States created at the same time negative implications by pressuringf or more protection in a shorter time than is mandated under TRIPs: in other words, requiring "TRIPs-Plus" standards. The conclusions of this paper could prove useful when analyzing similar cases over remaining TRIPs "transitional period" years in developing and least developed countries regarding the protection of pharmaceutical intellectual property rights.
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MESSAGE DELETED? RESOLVING PHYSICIAN-PATIENT E-MAIL THROUGH CONTRACT LAWThis article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Indeed, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a toolfor improving the quality of health care as well.
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RIDER TO STUDENT NOTE: PRIVACY WARS IN CYBERSPACERIDER TO STUDENT NOTE: PRIVACY WARS IN CYBERSPACE: AN EXAMINATION OF THE LEGAL AND BUSINESS TENSIONS IN INFORMATION PRIVACY
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"MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINIONToday's world of constant surveillance and data collection allows for the gathering of vast amounts of personal information. In this reality, sophistication in the analysis of information is key. Data mining is probably the information collectors' only hope to close the sophistication gap, yet the use of advanced means of analysis is certain to impact individuals and society in various ways. This Article addresses the use of data mining applications in analyzing personal information and its impact upon society. It begins with a description of current data mining practices from a technical point of view, a perspective often overlooked in legal scholarship. The Article next describes the current privacy debate, highlighting the issues most relevant to the new reality data mining creates. Among others, it addresses issues such as discrimination, threats to autonomy, misuse of data and the consequences of erroneous information. The analysis is facilitated by several concrete "hypotheticals" that address some of the otherwise abstract concepts this debate presents in simple terms. The author asserts that in view of data mining tools, some traditional claims of privacy are rendered trivial or obsolete, while others are of particular importance. After focusing on the role of public opinion, the Article concludes by outlining a public opinion campaign which may prove useful in finding solutions to the legal problems data mining tools create.
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BUILDING SOCIAL NORMS ON THE INTERNETThis Note examines how architecture, and particularly the design and coding of software on the Internet, helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behavior the code is written to promote. The Note begins by describing how architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the general theory of architecture and norms to the Internet world, first describing the particular features of the Internet-anonymity, dispersion, and the free flow of information-that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how software engineers have effectively and ineffectively used code to promote the development of social norms.
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Internet Privacy: Who Makes the RulesRichard M. Smith, Chief Technology Officer of the Privacy Foundation, discusses the ways emerging technology infringes consumer privacy on the Internet. He believes the widespread use of cookies and the growing use of online profiling by companies like DoubleClick create serious privacy problems for people who use the Internet. The solution lies in combining the efforts of programmers, who can find ways to eliminate these profiling mechanisms online, and of lawyers, who can structure legal rules to proscribe information misuse.
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The Sky Is Not Falling: The Effects of Term Adjustment under the American Inventors Protection Act on Patent ProsecutionMr. Slate's article considers the likely effects of the patent term adjustment provisions of the American Inventors Protection Act. Contrary to popular expectations, Mr. Slate argues that the Act's term adjustment provisions will have little practical effect on most practitioners' work.
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PRIVACY WARS IN CYBERSPACE: AN EXAMINATION OF THE LEGAL AND BUSINESS TENSIONS IN INFORMATION PRIVACYFor all its remarkable attributes, the explosive growth in e-commerce and Internet use has had deleterious consequences for the privacy ofparticipating individuals, who are often unaware of the tremendous amount of information about them that is collected and analyzed These disparate bits of data are amalgamated to yield very identifiable consumer profiles, which are subsequently sold to other organizations, depriving the consumers of their ability to control what they divulge about themselves to others, potentially resulting in a loss of individuality and creativity. Through the use of cookies, which provides numerous benefits to both consumers and retailers, the many advantages of ecommerce applications and business models are realized. However, the reliance on industry selfregulation has led to a plethora ofprivacy infractions in cyberspace, resulting in the enactment of the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and the U. S. plan under Bush to introduce privacy legislation after the Federal Trade Commission's recommendation. The task of drafting legislation is wrought with the complexities of balancing the interests of both parties, while attempting to address the tension of employing either overly or under-inclusive language. This difficulty is demonstrated in the analysis of PIPEDA's ambiguities, which is instructive for U S. states seeking to implement similar laws, who should note that privacy legislation ought to mandate full, informed consent through an express and explicit opt-in approach.
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Litigation, Privacy and the Electronic AgeIn this speech, the Honorable Lewis A. Kaplan discusses one problem in the legal system created by advances in technology - the tension between the privacy interests of litigants and the increased availability of information in modern society. Although openness is a central tenet of the legal system, until recent advancements in information technology, significant logistical difficulties in obtaining records on all but the most notable cases made most information unavailable to the public. However, advances in technology have greatly facilitated access to the universe of legal doents. Judge Kaplan explores the potential consequences of increased availability of information in a number of contexts and argues that it imposes an important responsibility on Courts to rethink the boundaries between public and private in litigation and to exercise increased caution in dealing with processes that touch on these boundaries.
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The Law of Attribution: Rules for Attribution the Source of a Cyber-AttackState-sponsored cyber-attacks are on the rise and show no signs of abating. Despite the threats posed by these attacks, the states responsible frequently escape with impunity because of the difficulty in attributing cyber-attacks to their source. As a result, current scholarship has focused almost exclusively on overcoming the technological barriers to attribution.
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Cyberselfish: Ravers, Guilders, Cyberpunks, And Other Silicon Valley LifeFormsPaulina Borsook, high-tech cultural commentator and author of Cyberselfish: A Critical Romp Through the Terribly Libertarian Culture of High Tech, discusses Silicon Valley's paradoxical "technolibertarian" attitude towards the government and the Big Capital Establishment who made the meteoric rise of the technology industry possible. Borsook, in deconstructing the myth of the freewheeling Silicon Valley technogogue, exposes the fragile connections between the Randian pretensions of today's near-religious egotism and the genuinely libertarian fringe from the salad days of the Internet.
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Reexamination: A Viable Alternative to Patent Litigation?Recent concern over the state of patent law doctrine has led Congress to pass legislation reforming patent reexamination procedures. The effects of the new procedures will remain uncertain for several years. However, Dale Carlson, Co-chair of the Patent Practice Group at Wiggin & Dana, and Jason Crain, a Yale Law School graduate, discuss the results of a preliminary study of the likely impact of the new inter partes reexamination procedure. In this presentation, Carlson and Crain examine some of the driving forces behind the reform initiative and compare ex parte reexamination procedures with inter partes reexamination procedures. In particular, they address concerns of biases inherent in the new procedure. Ultimately, Carlson and Crain suggest that the new procedure will provide a viable alternative to patent litigation, particularly for small inventors.
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A Light in Digital Darkness: Public Broadband after Tennessee v. FCCTen years ago, the city of Chattanooga, Tennessee built its own high-speed Internet network, and today Chattanooga's publicly owned Internet infrastructure (''public broadband" or "municipal broadband'? is faster and more affordable than almost anywhere else in the world. In this Article, I make the case for why other communities currently underserved by private broadband providers should consider building their own high-speed broadband networks and treating Internet as an essential public service akin to water or electricity, and I explore means by which these communities can overcome the legal and political hurdles they may face along the way.
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Prior Restraints and Digital Surveillance: The Constitutionality of Gag Orders Issued under the Stored Communications ActThe First Amendment's prohibition on prior restraints on speech is generally understood to be near-absolute. The doctrine permits prior restraints in only a handful of circumstances, and tends to require compelling evidence of their necessity. The focus of this Article is the source of an unexpected but important challenge to this doctrine: government surveillance in the digital age. Recent litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person's stored internet communications from a service provider and to seek a gag order preventing the provider from even notifying the person of that fact. Though the government did not ultimately prevail in the litigation, the case provides a renewed opportunity to consider the tension between prior restraint doctrine and the government's digital surveillance efforts.
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Algorithmic Transparency for the Smart CityAs artificial intelligence and big data analytics increasingly replace human decision making, questions about algorithmic ethics become more pressing. Many are concerned that an algorithmic society is too opaque to be accountable for its behavior. An individual can be denied parole or credit, fired, or not hired for reasons that she will never know and which cannot be articulated. In the public sector, the opacity of algorithmic decision making is particularly problematic, both because governmental decisions may be especially weighty and because democratically elected governments have special duties of accountability.