Harvard journal of law & technology最新文献

{"title":"The Many Revolutions of Carpenter","authors":"Paul Ohm","doi":"10.31228/osf.io/bsedj","DOIUrl":"https://doi.org/10.31228/osf.io/bsedj","url":null,"abstract":"Carpenter v. United States, the 2018 Supreme Court opinion that requires the police to obtain a warrant to access an individual’s historical whereabouts from the records of a cell phone provider, is the most important Fourth Amendment opinion in decades. Although many have acknowledged some of the ways the opinion has changed the doctrine of Constitutional privacy, the importance of Carpenter has not yet been fully appreciated. Carpenter works many revolutions in the law, not only through its holding and new rule, but in more fundamental respects. The opinion reinvents the reasonable expectation of privacy test as it applies to large databases of information about individuals. It turns the third-party doctrine inside out, requiring judges to scrutinize the products of purely private decisions. In dicta, it announces a new rule of technological equivalence, which might end up covering more police activity than the core rule. Finally, it embraces technological exceptionalism as a centerpiece for the interpretation of the Fourth Amendment, rejecting backwards-looking interdisciplinary methods such as legal history or surveys of popular attitudes. Considering all of these revolutions, Carpenter is the most important Fourth Amendment decision since Katz v. United States, a case it might end up rivaling in influence.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"51 1","pages":"357"},"PeriodicalIF":0.0,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90610468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Compelled Decryption and the Fifth Amendment: Exploring the Technical Boundaries","authors":"A. Cohen, Sunoo Park","doi":"10.2139/SSRN.3117984","DOIUrl":"https://doi.org/10.2139/SSRN.3117984","url":null,"abstract":"This Article examines how the legality of governmentally compelled decryption can be surprisingly sensitive to technological nuances. It overviews the reasoning behind a collection of cases that have shaped the doctrine to date on compelled decryption and the Fifth Amendment, and categorizes past cases into four archetypal patterns. Building upon this, the Article examines the sensitivity of the doctrine to technological change by means of “technological hypotheticals:” that is, by identifying assumptions implicit in courts’ analyses to date regarding the nature of the encryption technology involved, and considering the potential impact of realistic variant technologies (such as special types of encryption) that could challenge those assumptions. Next, the Article revisits the doctrine and the ongoing challenge faced by courts of reaching robust decisions whose underlying reasoning will remain unequivocal and relevant in the face of future technological developments. Towards addressing this challenge, some specific analytical approaches and technical considerations are distilled. Then, inspired by the importance of the concept of existence in Fifth Amendment doctrine as influentially set forth in Fisher v. United States, discusses the nature of existence of encrypted data and passwords as distinct from that of more tangible objects, accentuating some challenges of applying precedent set in the physical domain to digital information. The Article concludes with a brief reflection on the long-term desirability of technological sensitivity as found in compelled decryption cases.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"24 1","pages":"169"},"PeriodicalIF":0.0,"publicationDate":"2018-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85712123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Vested Use-Privileges in Property and Copyright","authors":"Christopher M. Newman","doi":"10.2139/SSRN.2897083","DOIUrl":"https://doi.org/10.2139/SSRN.2897083","url":null,"abstract":"The notion that, “If it’s mine, I can do whatever I want with it” continues to have strong popular appeal as describing one of the implications of property ownership. Indeed, this notion is coming to be pressed into service as a source of normative objection to the scope of certain intellectual property laws which have the effect of limiting what consumers can do with chattels they otherwise own. Yet in property theory the status of use-privileges has long been dubious, with the right to exclude instead taking center stage. This essay considers the nature of a “vested use-privilege” from both analytical and positive law perspectives, offering both a formal account of what it would mean for such an entitlement to exist or be infringed and a discussion of both the extent to which such an entitlement actually exists in current property law and the extent to which copyright law should be regarded as conflicting with it.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"77 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87055943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Encryption Congress Mod (Apple + CALEA)","authors":"J. Hurwitz","doi":"10.2139/SSRN.2826869","DOIUrl":"https://doi.org/10.2139/SSRN.2826869","url":null,"abstract":"We are in the midst of the latest iteration of the “crypto wars.” These conflicts, nominally waged between proponents of strong encryption technologies on the one hand and law enforcement and national security interests on the other, are the natural result of increased availability and use of strong encryption throughout the communications ecosystem. Strong encryption makes it difficult, in some cases effectively impossible, for the government to obtain information from individuals – even in cases where it has lawful basis for demanding and legitimate need to obtain access to that information. The availability of a technology that effectively moots the government’s ability to compel the disclosure of information shifts the balance of power between individuals and the government. The task of rebalancing these powers ultimately falls to the political process, and, in specific, to Congress. This article uses CALEA, a law adopted in 1994 during the previous iteration of the crypto wars, as a lens to understand how Congress can, and is likely to, respond to this changing balance of power.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"31 1","pages":"355"},"PeriodicalIF":0.0,"publicationDate":"2016-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86768055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies","authors":"Matthew U. Scherer","doi":"10.2139/SSRN.2609777","DOIUrl":"https://doi.org/10.2139/SSRN.2609777","url":null,"abstract":"Artificial intelligence technology (or AI) has developed rapidly during the past decade, and the effects of the AI revolution are already being keenly felt in many sectors of the economy. A growing chorus of commentators, scientists, and entrepreneurs has expressed alarm regarding the increasing role that autonomous machines are playing in society, with some suggesting that government regulation may be necessary to reduce the public risks that AI will pose. Unfortunately, the unique features of AI and the manner in which AI can be developed present both practical and conceptual challenges for the legal system. These challenges must be confronted if the legal system is to positively impact the development of AI and ensure that aggrieved parties receive compensation when AI systems cause harm. This article will explore the public risks associated with AI and the competencies of government institutions in managing those risks. It concludes with a proposal for an indirect form of AI regulation based on differential tort liability.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"64 1","pages":"353"},"PeriodicalIF":0.0,"publicationDate":"2015-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80858689","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Your Secret Stingray's No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy","authors":"Stephanie K. Pell, Christopher Soghoian","doi":"10.31228/osf.io/67k8c","DOIUrl":"https://doi.org/10.31228/osf.io/67k8c","url":null,"abstract":"In the early 1990s, off-the-shelf radio scanners allowed any snoop or criminal to eavesdrop on the calls of nearby cell phone users. These radio scanners could intercept calls due to a significant security vulnerability inherent in then widely used analog cellular phone networks: calls were not encrypted as they traveled over the air. In response to this problem, Congress, rather than exploring options for improving the security of cellular networks, merely outlawed the sale of new radio scanners capable of intercepting cellular signals, which did nothing to prevent the potential use of millions of existing interception-capable radio scanners. Now, nearly two decades after Congress passed legislation intended to protect analog phones from interception by radio scanners, we are rapidly approaching a future with a widespread interception threat to cellular communications very reminiscent of the one scanners posed in the 1990s, but with a much larger range of public and private actors with access to a much more powerful cellular interception technology that exploits security vulnerabilities in our digital cellular networks.This Article illustrates how cellular interception capabilities and technology have become, for better or worse, globalized and democratized, placing Americans’ cellular communications at risk of interception from foreign governments, criminals, the tabloid press and virtually anyone else with sufficient motive to capture cellular content in transmission. Notwithstanding this risk, US government agencies continue to treat practically everything about this cellular interception technology, as a closely guarded, necessarily secret “source and method,” shrouding the technical capabilities and limitations of the equipment from public discussion, even keeping its very name from public disclosure. This “source and method” argument, although questionable in its efficacy, is invoked to protect law enforcement agencies’ own use of this technology while allegedly preventing criminal suspects from learning how to evade surveillance.This Article argues that current policy makers should not follow the worn path of attempting to outlaw technology while ignoring, and thus perpetuating, the significant vulnerabilities in cellular communications networks on which it depends. Moreover, lawmakers must resist the reflexive temptation to elevate the sustainability of a particular surveillance technology over the need to curtail the general threat that technology poses to the security of cellular networks. Instead, with regard to this destabilizing, unmediated technology and its increasing general availability at decreasing prices, Congress and appropriate regulators should address these network vulnerabilities directly and thoroughly as part of the larger cyber security policy debates and solutions now under consideration. This Article concludes by offering the beginnings of a way forward for legislators to address digital cellular network vulnerabili","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"144 1","pages":"40"},"PeriodicalIF":0.0,"publicationDate":"2014-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86019790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reforming Copyright Interpretation","authors":"Zahr K. Said","doi":"10.2139/SSRN.2472500","DOIUrl":"https://doi.org/10.2139/SSRN.2472500","url":null,"abstract":"This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the parties, such as whether an issue is a matter of law or fact; whether an issue may be decided at summary judgment; whether expert testimony is allowed; and whether a use is fair or not (among multiple other doctrinal issues). Currently, the lack of transparency that characterizes copyright’s interpretive practices creates unpredictability and unfairness for the parties, because method selection often matters to outcomes. As a function of interpretive choice, works of art may escape destruction if found non-infringing (Cariou v. Prince); movies may get made, or languish as legal disputes get ironed out (Sheldon v. Metro-Goldwyn Pictures; Effie v. Murphy); novels may get banned, or declared a fair use (Salinger v. Colting; Suntrust v. Houghton-Mifflin); fan works may be threatened (RDR v. Warner Bros). Ultimately, understanding interpretive choice helps evaluate the proper allocation and scope of decisional authority, assist in the proper characterization of issues, and identify the best tools to use in copyright’s interpretive work. The Article concludes with a call for greater methodological transparency, and it offers a few modest prescriptions about which interpretive methods might be best adopted, by whom, when, and why. It proposes a rule-based, two-tiered approach to copyright adjudication, a process-based formalism that would constrain judicial discretion and could produce greater consistency and fairness.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"79 1","pages":"469"},"PeriodicalIF":0.0,"publicationDate":"2014-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87105949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The NSA Has Not Been Here: Warrant Canaries as Tools for Transparency in the Wake of the Snowden Disclosures","authors":"Naomi Gilens","doi":"10.2139/SSRN.2498150","DOIUrl":"https://doi.org/10.2139/SSRN.2498150","url":null,"abstract":"Technology companies are increasingly experimenting with “warrant canaries” as a means of increasing transparency around the national security orders they receive. A warrant canary is a statement that a company regularly publishes, declaring that the company has never received a national security order. Should the company stop publishing the statement, the public can infer that the company has received such an order. This paper explores the constitutional and practical implications raised by this practice. It examines the various types of canaries that companies have used thus far, and proposes best practices for companies going forward. It also argues that canaries are protected by the First Amendment, and that any order compelling a company to publish a false canary must survive strict scrutiny, if not an even more exacting standard of review. Ultimately, this paper advocates for a company committed to transparency to adopt and litigate a test canary to establish that canaries can be lawful tools.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"60 1","pages":"525"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91325918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trademarks as Search Engine Keywords: Much Ado About Something?","authors":"David J. Franklyn, D. Hyman","doi":"10.2139/SSRN.2110364","DOIUrl":"https://doi.org/10.2139/SSRN.2110364","url":null,"abstract":"Disgruntled trademark owners have filed more than one hundred lawsuits in the United States and Europe, claiming that their trademarks should not be sold by search engines for use as keywords. Despite the volume of litigation, there has been little independent empirical work on consumer goals and expectations when they use trademarks as search terms; on whether consumers are actually confused by search results; and on which entities are buying trademarks as keywords. Instead, judges have relied heavily on their own intuitions, based on little more than armchair empiricism, to resolve such matters. We report on the results of a two-part study, including three online consumer surveys, and a coding study of the results when 2,500 trademarks were run through three search engines. Consumer goals and expectations turn out to be quite heterogeneous: a majority of consumers use brand names to search primarily for the branded goods, but most consumers are open to purchasing competing products. We find little evidence of consumer confusion regarding the source of goods, but only a small minority of consumers correctly and consistently distinguished paid ads from unpaid search results. We also find that the aggregate risk of consumer confusion is low, because most of the ads triggered by the use of trademarks as keywords are for authorized sellers or the trademark owners themselves. However, a sizeable percentage of survey respondents thought it was unfair and inappropriate for one company to purchase another company’s trademark as a keyword, independent of confusion as to source. Although we do find some evidence of confusion, the types of confusion we document do not map neatly onto the categories recognized by U.S. trademark law. Our findings suggest that the development of the doctrine in this area has not been well served by the reliance of judges on casual empiricism in resolving these disputes. Much remains to be done to ensure that trademark doctrine “fits” the on-line context, and that it is applied in ways that are empirically grounded.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"32 1","pages":"481"},"PeriodicalIF":0.0,"publicationDate":"2012-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90788623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Face Tells More than a Thousand Posts: Developing Face Recognition Privacy in Social Networks","authors":"Yana Welinder","doi":"10.2139/SSRN.2109108","DOIUrl":"https://doi.org/10.2139/SSRN.2109108","url":null,"abstract":"What is so special about a face? It is the one personally identifiable feature that we all show in public. Faces are particularly good for identification purposes because, unlike getting a new coat or haircut, significantly altering a face to make it unrecognizable is difficult. But since most people have only a limited set of acquaintances, they can often remain anonymous when doing something personal by themselves — even in public. The use of face recognition technology in social networks shifts this paradigm. It can connect an otherwise anonymous face not only to a name — of which there can be several — but to all the information in a social network profile, including one’s friends, work and education history, status updates, and so forth.In this Article, I present two central ideas. First, applying the theory of contextual integrity, I argue that the current use face recognition technology in social networks violates users’ privacy by changing the information that they share (from a simple photo to automatically identifying biometric data) and providing this information to new recipients beyond the users’ control. Second, I identify the deficiencies in the current law and argue that law alone cannot solve this problem. A blanket prohibition on automatic face recognition in social networks would stifle the development of these technologies, which are useful in their own right. But at the same time, our traditional privacy framework of notice and consent cannot protect users who do not understand the automatic face recognition process and recklessly continue sharing their personal information due to strong network effects. Instead, I propose a multifaceted solution aimed at lowering switching costs between social networks and providing users with better information about how their data is used. My argument is that once users are truly free to leave, they will be able to exercise their choice in a meaningful way to demand that social networks respect their privacy expectations.Though this Article specifically addresses the use of face recognition technology in social networks, the proposed solution can be applied to other privacy problems arising in online platforms that accumulate personal information. More broadly, the undertaking to open up social networks and make them more transparent and interoperable could address the concern that these networks threaten to fragment the Web and lock in our personal information.","PeriodicalId":81374,"journal":{"name":"Harvard journal of law & technology","volume":"59 1","pages":"165"},"PeriodicalIF":0.0,"publicationDate":"2012-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85979542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}