Systemic Social Media Regulation

By: Frank Fagan

Social media platforms are motivated by profit, corporate image, long-term viability, good citizenship, and a desire for friendly legal environments. These managerial interests stand in contrast to the gubernatorial interests of the state, which include the promotion of free speech, the development of e-commerce, various counter terrorism initiatives, and the discouragement of hate speech. Inasmuch as managerial and gubernatorial interests overlap, a self-regulation model of platform governance should prevail. Inasmuch as they diverge, regulation is desirable when its benefits exceed its costs. An assessment of the benefits and costs of social media regulation should account for how social facts, norms, and falsehoods proliferate. This Article sketches a basic economic model. What emerges from the analysis is that the quality of discourse cannot be controlled through suppression of content, or even disclosure of source. A better approach is to modify, in a manner conducive to discursive excellence, the structure of the forum. Optimal platform architecture should aim to reduce the systemic externalities generated by the social interactions that they enable, including the social costs of unlawful interference in elections and the proliferation of hate speech. Simultaneously, a systemic approach to social media regulation implies fewer controls on user behavior and content creation, and attendant First Amendment complications. Several examples are explored, including algorithmic newsfeeds, online advertising, and invited campus speakers.
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Cite: 16 Duke L. & Tech. Rev. 393

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Big Brother is Listening to You: Digital Eavesdropping in the Advertising Industry

By: Dacia Green

In the Digital Age, information is more accessible than ever. Unfortunately, that accessibility has come at the expense of privacy. Now, more and more personal information is in the hands of corporations and governments, for uses not known to the average consumer. Although these entities have long been able to keep tabs on individuals, with the advent of virtual assistants and “always-listening” technologies, the ease by which a third party may extract information from a consumer has only increased.

The stark reality is that lawmakers have left the American public behind. While other countries have enacted consumer privacy protections, the United States has no satisfactory legal framework in place to curb data collection by greedy businesses or to regulate how those companies may use and protect consumer data. This Article contemplates one use of that data: digital advertising. Inspired by stories of suspiciously well-targeted advertisements appearing on social media websites, this Article additionally questions whether companies have been honest about their collection of audio data. To address the potential harms consumers may suffer as a result of this deficient privacy protection, this Article proposes a framework wherein companies must acquire users’ consent and the government must ensure that businesses do not use consumer information for harmful purposes.

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Cite: 16 Duke L. & Tech. Rev. 352

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Online Terrorist Speech, Direct Government Regulation, and the Communications Decency Act

By: Steven Beale

The Communications Decency Act (CDA) provides Internet platforms complete liability protection from user-generated content. This Article discusses the costs of this current legal framework and several potential solutions. It proposes three modifications to the CDA that would use a carrot and stick to incentivize companies to take a more active role in addressing some of the most blatant downsides of user-generated content on the Internet. Despite the modest nature of these proposed changes, they would have a significant impact.
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Cite: 16 Duke L. & Tech. Rev. 333

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Initial Coin Offerings: Innovation, Democratization, and the SEC

By: Jay Preston

Initial coin offerings are a source of controversy in the world of startup fundraising, and their legality is, at best, an open question. Amid soaring valuations and rumors of looming SEC action, investors and issuers alike are scrambling to forge a path forward for the token-based startups of tomorrow. While issuers may soon be forced to comply with United States securities laws, the existing regime is inadequate because it does not allow startups to capture the unique benefits of coin sales and, more importantly, it does not allow eager American investors to take part in funding the world’s next generation of technology companies.
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Cite: 16 Duke L. & Tech. Rev. 318

Posted in Cryptocurrency, Securities Law | Tagged

Crashed Software: Assessing Product Liability for Software Defects in Automated Vehicles

By: Sunghyo Kim

Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new challenges in bringing product liability claims against manufacturers and developers.
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Cite: 16 Duke L. & Tech. Rev. 300

Posted in Intellectual Property, Patents & Technology, Science & Technology | Tagged , ,

These Walls Can Talk! Securing Digital Privacy in the Smart Home Under the Fourth Amendment

By: Stefan Ducich

Privacy law in the United States has not kept pace with the realities of technological development, nor the growing reliance on the Internet of Things (IoT). As of now, the law has not adequately secured the “smart” home from intrusion by the state, and the Supreme Court further eroded digital privacy by conflating the common law concepts of trespass and exclusion in United States v. Jones. This article argues that the Court must correct this misstep by explicitly recognizing the method by which the Founding Fathers sought to “secure” houses and effects under the Fourth Amendment. Namely, the Court must reject its overly narrow trespass approach in lieu of the more appropriate right to exclude. This will better account for twenty-first century surveillance capabilities and properly constrain the state. Moreover, an exclusion framework will bolster the reasonable expectation of digital privacy by presuming an objective unreasonableness in any warrantless penetration by the state into the smart home.

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Cite: 16 Duke L. & Tech. Rev. 278

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Regulating Data as Property: A New Construct for Moving Forward

By: Jeffrey Ritter and Anna Mayer

The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property.

Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership of digital information be achieved? How can those rights be transferred and enforced?

Those calls for data ownership emphasize the impact of ownership on the automotive industry and the vast quantities of operational data which smart automobiles and self-driving vehicles will produce. We looked at how, if at all, the issue was being considered in consumer-facing statements addressing the data being collected by their vehicles.

To formulate our proposal, we also considered continued advances in scientific research, quantum mechanics, and quantum computing which confirm that information in any digital or electronic medium is, and always has been, physical, tangible matter. Yet, to date, data regulation has sought to adapt legal constructs for “intangible” intellectual property or to express a series of permissions and constraints tied to specific classifications of data (such as personally identifiable information.

We examined legal reforms that were recently approved by the United Nations Commission on International Trade Law to enable transactions involving electronic transferable records, as well as prior reforms adopted in the United States Uniform Commercial Code and Federal law to enable similar transactions involving digital records that were, historically, physical assets (such as promissory notes or chattel paper.

Finally, we surveyed prior academic scholarship in the U.S. and Europe to determine if the physical attributes of digital data had been previously considered in the vigorous debates on how to regulate personal information or the extent, if at all, that the solutions developed for transferable records had been considered for larger classes of digital assets.

Based on the preceding, we propose that regulation of digital information assets, and clear concepts of ownership, can be built on existing legal constructs that have enabled electronic commercial practices. We propose a property rules construct that clearly defines a right to own digital information arises upon creation (whether by keystroke or machine), and suggest when and how that right attaches to specific data though the exercise of technological controls.

This construct will enable faster, better adaptations of new rules for the ever-evolving portfolio of data assets being created around the world. This approach will also create more predictable, scalable, and extensible mechanisms for regulating data and is consistent with, and may improve the exercise and enforcement of, rights regarding personal information. We conclude by highlighting existing technologies and their potential to support this construct and begin an inventory of the steps necessary to further proceed with this process.
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Cite: 16 Duke L. & Tech. Rev. 220

Posted in Data Analytics, Intellectual Property, International | Tagged , ,

Hacking the Internet of Things: Vulnerabilities, Dangers, and Legal Responses

By: Sara Sun Beale and Peter Berris

The Internet of Things (IoT) is here and growing rapidly as consumers eagerly adopt internet-enabled devices for their utility, features, and convenience. But this dramatic expansion also exacerbates two underlying dangers in the IoT. First, hackers in the IoT may attempt to gain control of internet-enabled devices, causing negative consequences in the physical world. Given that objects with internet connectivity range from household appliances and automobiles to major infrastructure components, this danger is potentially severe. Indeed, in the last few years, hackers have gained control of cars, trains, and dams, and some experts think that even commercial airplanes could be at risk. Second, IoT devices pose an enormous risk to the stability of the internet itself, as they are vulnerable to being hacked and recruited into botnets used for attacks on the digital world. Recent attacks on major websites including Netflix and Twitter exemplify this danger. This article surveys these dangers, summarizes some of their main causes, and then analyzes the extent to which current laws like the Computer Fraud and Abuse Act punish hacking in the IoT. The article finds that although hacking in the IoT is likely illegal, the current legal regime punishes hacking after the fact and therefore lacks the prospective force needed to fully temper the risks posed by the IoT. Therefore, other solutions are needed to address the perilousness of the IoT in its current form. After a discussion of the practical and legal barriers to investigating and prosecuting hacking, we turn to the merits and pitfalls of hacking back from legal, practical, and ethical perspectives. We then discuss the advantages and disadvantages of two possible solutions—regulation and the standards approach.
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Cite: 16 Duke L. & Tech. Rev. 161

Posted in CyberCrime | Tagged

Live Sports Virtual Reality Broadcasts: Copyright and Other Protections

By: Marie Hopkins

As virtual reality rapidly progresses, broadcasts are able to increasingly mimic the experience of actually attending a game. As the technology advances and the viewer can freely move about the game and virtual reality can simulate the in-stadium attendance, the virtual reality broadcast nears the point where the broadcast is indistinguishable from the underlying game. Thus, novel copyright protection issues arise regarding the ability to protect the experience through copyright. Although normal broadcasts may be copyrighted, virtual reality broadcasts of live sports could lack protection under the Copyright Act because the elements of originality, authorship, and fixation are harder to satisfy for this type of work. If the elements that formerly protected broadcasts through copyright no longer apply, the virtual reality broadcast of the game will lose copyright protection. The virtual reality broadcaster can receive protection for the work in several ways, such as (1) by broadcaster-made modifications to the transmitted broadcast, (2) through misappropriation claims, or (3) by inserting contract terms. These additional steps maintain the ability of virtual reality broadcasters to disseminate works without fear the work will not be protectable by the law.
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Cite: 16 Duke L. & Tech. Rev. 141

Posted in Copyrights & Trademarks, Science & Technology | Tagged , ,

Peeling Back the Student Privacy Pledge

By: Alexi Pfeffer-Gillett

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. Since its introduction in 2014, over 300 companies have signed on, indicating widespread commitment to the Pledge’s seemingly broad protections for student privacy. This industry participation is encouraging, but the Pledge does not contain any meaningful oversight or enforcement provisions.

This Article analyzes whether signatory companies are actually complying with the Pledge rather than just paying lip service to its goals. By looking to the privacy policies and terms of service of a sample of the Pledge’s signatories, I conclude that noncompliance may be a significant and prevalent issue.

Consumers of education software have some power to hold signatories accountable, but their oversight abilities are limited. This Article argues that the federal government, specifically the Federal Trade Commission, is best positioned to enforce compliance with the Pledge and should hold Pledge signatories to their promises.
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Cite: 16 Duke L. & Tech. Rev. 100

Posted in Media & Communications, Science & Technology | Tagged ,

Artificial Intelligence: Application Today and Implications Tomorrow

By: Sean Semmler & Zeeve Rose

This paper analyzes the applications of artificial intelligence to the legal industry, specifically in the fields of legal research and contract drafting. First, it will look at the implications of artificial intelligence (A.I.) for the current practice of law. Second, it will delve into the future implications of A.I. on law firms and the possible regulatory challenges that come with A.I. The proliferation of A.I. in the legal sphere will give laymen (clients) access to the information and services traditionally provided exclusively by attorneys. With an increase in access to these services will come a change in the role that lawyers must play. A.I. is a tool that will increase access to cheaper and more efficient services, but non-lawyers lack the training to analyze and understand information it puts out. The role of lawyers will change to fill this role, namely utilizing these tools to create a better work product with greater efficiency for their clients.
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Cite: 16 Duke L. & Tech. Rev. 85

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Slave to the Algorithm? Why a ‘Right to an Explanation’ Is Probably Not the Remedy You Are Looking For

By: Lilian Edwards & Michael Veale

Algorithms, particularly machine learning (ML) algorithms, are increasingly important to individuals’ lives, but have caused a range of concerns revolving mainly around unfairness, discrimination and opacity. Transparency in the form of a “right to an explanation” has emerged as a compellingly attractive remedy since it intuitively promises to open the algorithmic “black box” to promote challenge, redress, and hopefully heightened accountability. Amidst the general furore over algorithmic bias we describe, any remedy in a storm has looked attractive.

However, we argue that a right to an explanation in the EU General Data Protection Regulation (GDPR) is unlikely to present a complete remedy to algorithmic harms, particularly in some of the core “algorithmic war stories” that have shaped recent attitudes in this domain. Firstly, the law is restrictive, unclear, or even paradoxical concerning when any explanation-related right can be triggered. Secondly, even navigating this, the legal conception of explanations as “meaningful information about the logic of processing” may not be provided by the kind of ML “explanations” computer scientists have developed, partially in response. ML explanations are restricted both by the type of explanation sought, the dimensionality of the domain and the type of user seeking an explanation. However, “subject-centric” explanations (SCEs) focussing on particular regions of a model around a query show promise for interactive exploration, as do explanation systems based on learning a model from outside rather than taking it apart (pedagogical versus decompositional explanations) in dodging developers’ worries of intellectual property or trade secrets disclosure.

Based on our analysis, we fear that the search for a “right to an explanation” in the GDPR may be at best distracting, and at worst nurture a new kind of “transparency fallacy.” But all is not lost. We argue that other parts of the GDPR related (i) to the right to erasure (“right to be forgotten”) and the right to data portability; and (ii) to privacy by design, Data Protection Impact Assessments and certification and privacy seals, may have the seeds we can use to make algorithms more responsible, explicable, and human-centered.

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Cite: 16 Duke L. & Tech. Rev. 18

Posted in Data Analytics, International | Tagged ,

Collection of Cryptocurrency Customer-Information: Tax Enforcement Mechanism or Invasion of Privacy?

By: Austin Elliott

After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection.

This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to avoid the burden of capital gains taxes. Further, this Issue Brief attempts to uncover the validity of the privacy claims made against the customer information summons and will recommend alternative actions for the IRS to take regardless of whether it succeeds in obtaining the information.
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Cite: 16 Duke L. & Tech. Rev. 1

Posted in Cryptocurrency, Uncategorized | Tagged , ,

Outer Space: The Final Frontier or the Final Battlefield?

By: Emily Taft

Current law concerning the militarization and weaponization of outer space is inadequate for present times. The increased implementation of “dual-use” space technologies poses obstacles for the demilitarization of space. This paper examines how far the militarization of space should be taken and also whether weapons of any kind should be placed in space. Further steps must be taken in international space law to attempt to keep the militarization and weaponization of space under control in order to promote and maintain a free outer space for research and exploration.
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Cite: 15 Duke L. & Tech. Rev. 362

Posted in International, Science & Technology, Space Law | Tagged

Embryos as Patients? Medical Provider Duties in the Age of CRISPR/Cas9

By: G. Edward Powell III

The CRISPR/Cas9 genome engineering platform is the first method of gene editing that could potentially be used to treat genetic disorders in human embryos. No past therapies, genetic or otherwise, have been intended or used to treat disorders in existent embryos. Past procedures performed on embryos have exclusively involved creation and implantation (e.g., in-vitro fertilization) or screening and selection of already-healthy embryos (e.g., preimplantation genetic diagnosis). A CRISPR/Cas9 treatment would evade medical malpractice law due to the early stage of the intervention and the fact that it is not a treatment for the mother. In most jurisdictions, medical professionals owe no duty to pre-viable fetuses or embryos as such, but will be held liable for negligent treatment of the mother if the treatment causes injury to a born-alive child. This issue brief discusses the science of CRISPR/Cas9, the background legal status of human embryos, and the case for considering genetically engineered embryos as patients for purposes of medical malpractice law.
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Cite: 15 Duke L. & Tech. Rev. 344

Posted in Health & Biotechnology, Science & Technology | Tagged ,

Damned Lies & Criminal Sentencing Using Evidence-Based Tools

By: John Lightbourne

The boom of big data and predictive analytics has revolutionized business. eHarmony matches customers based on shared likes and expectations for romance, and Target uses similar methods to strategically push its products on shoppers. Courts and Departments of Corrections have also sought to employ similar tools. However, the use of data analytics in sentencing raises a host of constitutional concerns. In State v. Loomis, the Wisconsin Supreme Court was faced with whether the use of an actuarial risk assessment tool based on a proprietary formula violates a defendant’s right to due process where the defendant could not review how the various inputs were weighed. The opinion attempts to save a constitutionally dubious technique and reads as a warning to lower courts in the proper use of predictive analytics. This article explores certain equal protection and due process arguments implicated by Loomis.
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Cite: 15 Duke L. & Tech. Rev. 327

Posted in Data Analytics | Tagged

The Licensing Function of Patent Intermediaries

By: John E. Dubiansky

The contemporary patent marketplace is a complex ecosystem comprised of innovators and manufacturers who are often connected by a varied group of intermediaries. While there are a variety of intermediary business models—such as patent assertion entities and defensive aggregators—each facilitates a variant of a similar licensing transaction, connecting a set of patents held by a patent owner with a product or service offered by a prospective licensee. One explanation for the prevalence of intermediaries is that they engage in practices tantamount to arbitrage, acquiring patents and then licensing them at a profit because they enjoy greater success in patent litigation than patent holders would on their own. This paper advances an additional explanation: some intermediaries may serve a function analogous to a platform trading in non-exclusive licenses, overcoming search and valuation costs to facilitate licensing.
This paper focuses on the use of two contract terms in intermediaries’ dealings with technology market participants: revenue sharing in patent acquisition and non-exclusive licensing. The Federal Trade Commission’s Patent Entity Activity Study reported that intermediaries used both of these terms. Building on those findings, this paper argues that intermediaries that use both provisions may, under some conditions, operate in a manner analogous to a two-sided platform. First, this paper examines how participants in a technology market would value non-exclusive licenses granted ex post, after the licensed product is already on the market. The paper argues that—in addition to the avoidance of litigation costs— the reduction of uncertainty can also drive licensee demand. Next, the paper proposes that use of revenue sharing allows patent holders to experience network effects from the number of prospective licensees accessed through the intermediary, which may make the intermediary more attractive than licensing unilaterally. Finally, this paper argues that the conduct of a patent licensing intermediary using these contract features can be analogized to the practices of other licensing intermediaries such as performing rights organizations and patent pools. These observations suggest that one explanation for the success of some intermediary models—as well as one aspect of their conduct that may influence competition in technology markets—is their ability to connect patent holders and prospective licensees with a greater number of potential trading partners than they would otherwise be able to connect with on their own.
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Cite: 15 Duke L. & Tech. Rev. 292

Posted in Intellectual Property, Patents & Technology | Tagged

Seeking Rights, Not Rent: How Litigation Finance Can Help Break Music Copyright’s Precedent Gridlock

By: Glenn E. Chappell

Since its inception, litigation finance has steadily grown in prevalence and popularity in the United States. While many scholars have examined its merits, few have considered litigation finance specifically in the context of copyright law. This is most unfortunate, for there, a vicious cycle has taken hold: high litigation costs discourage many market participants from taking cases to trial or summary judgment in order to vindicate their legal rights, even when they have strong cases. Thus, parties settle almost every case, which in turn prevents resolution of longstanding precedential questions in critical areas of copyright law. The legal uncertainty resulting from this precedential gridlock generates higher avoidance costs and poses more financial risks for market participants, particularly less-heeled or less-established parties.

This Note proposes one way in which litigation finance could help break that cycle. Specifically, rights holders and defendants alike can use litigation finance to fund strategic-litigation campaigns to pressure the development of precedent. To illustrate how this might work, this Note examines litigation finance in the narrow context of music copyright, an area that perfectly illustrates the problems besetting copyright law writ large. In doing so, this Note flips a popular criticism of litigation finance on its head: while some scholars argue that litigation finance can distort litigation strategy by encouraging litigants to reject mutually beneficial settlements, it is normatively desirable to do so given the unsettled state of music copyright law.

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Cite: 15 Duke L. & Tech. Rev. 269

Posted in Copyrights & Trademarks, Intellectual Property | Tagged

Increasing Copyright Protection for Social Media Users by Expanding Social Media Platforms’ Rights

By: Ryan Wichtowski

Social media platforms allow users to share their creative works with the world. Users take great advantage of this functionality, as Facebook, Instagram, Flickr, Snapchat, and WhatsApp users alone uploaded 1.8 billion photos per day in 2014. Under the terms of service and terms of use agreements of most U.S. based social media platforms, users retain ownership of this content, since they only grant social media platforms nonexclusive licenses to their content. While nonexclusive licenses protect users vis-à-vis the social media platforms, these licenses preclude social media platforms from bringing copyright infringement claims on behalf of their users against infringers of user content under the Copyright Act of 1976. Since the average cost of litigating a copyright infringement case might be as high as two million dollars, the average social media user cannot protect his or her content against copyright infringers. To remedy this issue, Congress should amend 17 U.S.C. § 501 to allow social media platforms to bring copyright infringement claims against those who infringe their users’ content. Through this amendment, Congress would create a new protection for social media users while ensuring that users retain ownership over the content they create.
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Cite: 15 Duke L. & Tech. Rev. 253

Posted in Copyrights & Trademarks, Intellectual Property, Media & Communications | Tagged ,

Law Firm Cybersecurity: The State of Preventative and Remedial Regulation Governing Data Breaches in the Legal Profession

By: Madelyn Tarr

With the looming threat of the next hacking scandal, data protection efforts in law firms are becoming increasingly crucial in maintaining client confidentiality. This paper addresses ethical and legal issues arising with data storage and privacy in law firms. The American Bar Association’s Model Rules present an ethical standard for cybersecurity measures, which many states have adopted and interpreted. Other than state legislation mandating timely disclosure after a data breach, few legal standards govern law firm data breaches. As technology advances rapidly, the law must address preventative and remedial measures more effectively to protect clients from data breaches caused by outdated or ineffective cybersecurity procedures in law firms. These measures should include setting a minimum standard of care for data security protection and creating a private cause of action for individuals whose personal information has been improperly accessed because of a failure to comply with those standards.
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Cite: 15 Duke L. & Tech. Rev. 235

Posted in CyberCrime, Media & Communications | Tagged

The Dawn of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into a Decades-Old Promise

By: Kathryn D. Betts and Kyle R. Jaep

Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. “Machine learning,” the leading innovative force in these areas, has proven incredibly efficient, performing in mere minutes tasks that would otherwise take a team of lawyers tens of hours. Some contract drafting programs have already experimented with machine learning capabilities, and this technology may pave the way for the full automation of contract drafting. Although intellectual property, data access, and ethical obstacles may delay complete integration of machine learning into contract drafting, full automation is likely still viable.

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Cite: 15 Duke L. & Tech. Rev. 216

Posted in Science & Technology | Tagged

SEC Reporting Requirements for Publicly Traded Companies Should Not be Expanded Despite Advancements in Information Technology

By: Lindsey Kell

Advancements in information technology allow information to be collected and analyzed quickly within a corporation. As a result, technology also allows the quicker release of information to the Securities Exchange Commission (SEC)—much quicker than the Form 10-K and Form 10-Q releases that are currently required for publicly traded companies. Although publicly traded companies must also disclose certain significant events in Form 8-K, the reporting requirements for publicly traded companies are not nearly as expansive as they could be considering the easy access these companies have to their business information. Even with this in mind, the SEC is well into a reevaluation of Regulation S-K primarily because requirements have accreted over time to become not just burdensome to companies but also blinding to investors who are overwhelmed by the volume of disclosure thrown at them. This paper expounds on these arguments and posits additional arguments for why the SEC should not expand reporting requirements for publicly traded companies. Specifically, expanded requirements are associated with high compliance costs; market forces already induce higher-quality disclosures; the more information companies file with the SEC, the more advantages they give to their competitors; and both the liability concerns and the doctrinal issues already associated with the current requirements will be exacerbated with an expansion of the requirements.

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Cite: 15 Duke L. & Tech. Rev. 196

Posted in Securities Law, Technology and Financial Reporting | Tagged

Websites as Facilities Under ADA Title III

By: Ryan C. Brunner

Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public accommodations. This change would open the door to a multilayered approach to accessible websites, wherein existing websites are subject to relatively lax requirements but new and altered websites are subject to stricter requirements.

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Cite: 15 Duke L. & Tech. Rev. 171

Posted in Media & Communications

Schools, Speech, and Smartphones: Online Speech and the Evolution of the Tinker Standard

By: Aleaha Jones

Under the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, public schools may only restrict student speech where the speech is reasonably forecasted to cause a “substantial and material disruption.” With online forums calling into question who may control speech and forecast its impact, the circuit courts have granted public schools broad authority to monitor, and punish, their students for online activity that occurs off-campus. The Supreme Court recently declined the opportunity to reverse this disturbing trend by denying certiorari for Bell v. Itawamba County. As a result, questions remain unanswered regarding students’ right to free speech and how courts should address First Amendment cases in the digital realm.

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Cite: 15 Duke L. & Tech. Rev. 155

Posted in Media & Communications | Tagged | 1 Comment

What’s in a Name: Cable Systems, FilmOn, and Judicial Consideration of the Applicability of the Copyright Act’s Compulsory License to Online Broadcasters of Cable Content

By: Kathryn M. Boyd

The way we consume media today is vastly different from the way media was consumed in 1976, when the Copyright Act created the compulsory license for cable systems. The compulsory license allowed cable systems, as defined by the Copyright Act, to pay a set fee for the right to air television programming rather than working out individual deals with each group that owned the copyright in the programming, and helped make television more widely accessible to the viewing public. FilmOn, a company that uses a mini-antenna system to capture and retransmit broadcast network signals, is now seeking access to the compulsory license. In three concurrent legal cases in New York, California, and D.C., FilmOn argues that it meets the statutory requirements to classify as a cable system. This Issue Brief examines the legal history of cable systems and considers the effects of agency influence, policy concerns, and the lack of judicial or congressional resolution regarding FilmOn’s contested legal status.

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Cite: 15 Duke L. & Tech. Rev. 139

Posted in Copyrights & Trademarks, Intellectual Property, Media & Communications | Tagged