High Health Care Spending and Developing Technology: Proton Beam Therapy

By: Yoojeong Jaye Han
Rising health care spending is a source of concern in the U.S. With new, high-cost health care technology, paying higher prices for the use of new technology without considering cheaper, equally effective alternatives leads to inefficient spending. This Note focuses on proton beam therapy (“PBT”) for treatment of prostate cancer to explore several causes that contribute to high health care spending in the U.S. In treating prostate cancer, PBT has not been shown to be more effective than its cheaper alternative, IMRT. Yet, investors and many states continue to encourage its use for prostate cancer. This Note argues that inefficient use of PBT increased because existing standard for review of new health care technology and its reimbursement often suggest new health care technology will be reimbursed at a prime rate. Hence, private investors fueled the development of PBT Centers indiscriminately, expecting a high return on their investment. Then, this Note proposes several ways to encourage a more efficient use of PBT.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 369

Any Safe Harbor in a Storm: SESTA-FOSTA and the Future of § 230 of the Communications Decency Act

By: Charles Matula
Section 230 of the Communications Decency Act not only allows the internet to flourish by shielding web platforms from liability for user-created content but also lets these companies off the hook for facilitating crime. SESTA-FOSTA, designed by legislators to target internet sex traffickers, attempts to chip away at this liability shield in order to maintain some form of accountability. This Note discusses this law, its motivations, and its implications for freedom of speech on the internet.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 353

A Copy of a Copy of a Copy: Internet Mimesis and the Copyrightability of Memes

By: Elena Elmerinda Scialabba
Memes have become a staple of Internet culture. They provide a crucial form of cultural interchange by allowing billions to communicate and commiserate about all facets of life through the sharing of amusing and relatable phenomena. However, many memes are created from copyrighted images, making it unclear whether their use constitutes copyright infringement actionable by the original copyright owners. This Note considers memes in the context of U.S. copyright law and proposes that memes could be protected against copyright infringement by the fair use doctrine, which excuses infringement if the would-be infringer’s use is socially desirable and aligned with the basic aims of copyright law. To illustrate this, this Note analyzes the “typical meme” through a thorough examination of the four statutory factors of fair use.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 332

Autonomous Systems as Legal Agents: Directly by the Recognition of Personhood or Indirectly by the Alchemy of Algorithmic Entities

By: Dalton Powell
At its core, agency law governs fiduciary relationships between two distinct parties (the principal and agent) in interactions with third parties. The three separate relationships within agency (principal-agent, agent-third party, and principal-third party) create binding legal rights and obligations. To be a principal or agent, one must be a person. The Restatement (Third) of Agency’s definition of person attempts to distinguish legally recognized persons from purely organizational entities and mere instrumentalities. The emergence of AI computing, and the ongoing development of truly autonomous computer systems, will test traditional agency law with questions like who or what can be a person. At present, the Restatement views computer programs as mere instrumentalities of the using person and thus not a separate person capable of being a principal or agent. This Note will analyze the tension created within agency law’s definition of personhood by the existence of autonomous systems.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 306

Opting Out: Biometric Information Privacy and Standing

By: Michelle Jackson
Biometric technology promises to reshape the modern economy. With the increased prevalence of biometric technology comes a heightened risk of data breaches and identity theft. To protect consumers, state legislatures have enacted biometric privacy laws. As more state legislatures define the intangible harm of data misuse, some federal courts have restricted what constitutes an injury sufficient to create Article III standing. This analysis misapplies Spokeo and undermines legislative efforts to protect individual privacy. Because of the important interests at stake with biometric information privacy, federal courts should follow the Ninth Circuit and recognize the misuse of that data as a sufficient injury to constitute standing. Consumers usually cannot opt out of new biometric technologies implemented at airport gates, shopping centers, and workplaces. The federal courts also should not use standing doctrines to opt out of the intangible harms characterizing the information age.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 293

Measuring Baseball’s Heartbeat: The Hidden Harms of Wearable Technology to Professional Ballplayers

By: John A. Balletta
After two-and-a-half decades of labor peace in Major League Baseball, storm clouds of a player strike are brewing as the operating Competitive Bargaining Agreement comes under fire. That same CBA includes Attachment 56, the most expansive allowance of wearable technology of the four major American professional sports. While the privacy of the athletes’ data might be the foremost concern under Attachment 56, there are a myriad of untapped arenas involving the use and dissemination of data from wearables, including issues in good-faith contracting and contract and trade negotiations. After situating the wearables provisions in the context of the CBA and describing the approved technologies, this Note will identify three infrequently discussed problems in Attachment 56 before positing ways around these concerns.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 268

The Danger of Facial Recognition in Our Children’s Classroom

By: Nila Bala
The use of facial recognition in classrooms to monitor students’ performance is already happening in China and soon may be coming to the West. Surveilling students in their classrooms presents a number of potential harms: (1) it implicates their privacy, (2) it could have profound effects on their development and stigmatizes youth who develop differently, and (3) it might amplify current inequities in our school system. Additionally, there are societal harms from this practice to our democratic society. To the extent that educators wish to employ this technology, our current legal regime is inadequate to mitigate the harms. While some changes could be made to better protect privacy and equity, ultimately, lawmakers and schools should consider banning facial recognition within classrooms.

Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 249

Esports, Player Positions, and the Benefits of Unionization

By: Roshan Patel
This Note examines the current state and implications of unionization within the eSports industry. eSports currently lags behind other industries, particularly other sports leagues like the NBA and NFL, in terms of unionization. Unaware of the benefits that unionization could bring to them, many eSports players lack bargaining power and are subject to abusive contracts and poor working and living conditions. This Note argues that eSports players hold immense power compared to workers in other industries and would greatly benefit from unionization. Although eSports players may face challenges in forming a unionized eSports industry, they are also in a unique position as a part of an industry that differs significantly in structure from traditional sports leagues. This Note will explore the possible benefits of and difficulties with achieving unionization in eSports.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 232

Implementing Ethics Into Artificial Intelligence: A Contribution, from a Legal Perspective, to the Development of an AI Governance Regime

By: Axel Walz and Kay Firth-Butterfield
The increasing use of AI and autonomous systems will have revolutionary impacts on society. Despite many benefits, AI and autonomous systems involve considerable risks that need to be managed. Minimizing these risks will emphasize the respective benefits while at the same time protecting the ethical values defined by fundamental rights and basic constitutional principles, thereby preserving a human centric society. This Article advocates for the need to conduct in-depth risk-benefit-assessments with regard to the use of AI and autonomous systems. This Article points out major concerns in relation to AI and autonomous systems such as likely job losses, causation of damages, lack of transparency, increasing loss of humanity in social relationships, loss of privacy and personal autonomy, potential information biases and the error proneness, and susceptibility to manipulation of AI and autonomous systems.
Download Full Article (PDF)
Cite: 18 Duke L. & Tech. Rev. 176

The Past and Future of The Internet: A Symposium for John Perry Barlow

Special Editor: James Boyle
Download Full Symposium (PDF)

Articles

The Past and Future of the Internet: A Symposium For John Perry Barlow
James Boyle
Cite: 18 Duke L. & Tech. Rev. 1

A Declaration of the Independence of Cyberspace
John Perry Barlow
Cite: 18 Duke L. & Tech. Rev. 5

Selling Wine Without Bottles: The Economy of Mind on the Global Net
John Perry Barlow
Cite: 18 Duke L. & Tech. Rev. 8

Is the Internet Over?! (AGAIN?)
James Boyle
Cite: 18 Duke L. & Tech. Rev. 32

Barlow’s Legacy
Cory Doctorow
Cite: 18 Duke L. & Tech. Rev. 61

Inventing the Future: Barlow and Beyond
Cindy Cohn
Cite: 18 Duke L. & Tech. Rev. 69

A Political Economy of Utopia?
Yochai Benkler
Cite: 18 Duke L. & Tech. Rev. 78

Internet Utopianism and the Practical Inevitability of Law
Julie E.