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. Cohen Cite: 18 Duke L. & Tech. Rev. 85 Revisiting Barlow’s Misplaced Optimism Benjamin Edelman Cite: 18 Duke L. & Tech. Rev. 97 The Enigma of Digitized Property: A Tribute to John Perry Barlow Pamela Samuelson & Kathryn Hashimoto Cite: 18 Duke L. & Tech. Rev. 103 Imaginary Bottles Jessica Litman Cite: 18 Duke L. & Tech. Rev. 127 John

Where to Prosecute Cybercrimes

By: Jacob T. Wall Selecting the appropriate venue for a criminal trial has been a matter of constitutional concern since the founding of the country. The issue is thought to be essential to the fair administration of justice and thus public confidence in the criminal justice system. Constitutionally, crimes must be prosecuted in the states and districts in which they were committed. However, the rise of cybercrime has complicated the venue inquiry: cyberspace, the domain of cybercrime, and physical space have become increasingly decoupled. Consequently, under America’s primary but dated cybercrime law, the ideal location for a trial may not be a constitutionally proper venue. This Note explores several possible approaches to permitting cybercrime trials to take place in the locations where they belong, including through an old but recently revisited judicially-created test for venue and through possible legislative reform. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 146

Icts, Social Media, & The Future of Human Rights

By: Nikita Mehandru and Alexa Koenig As communication increasingly shifts to digital platforms, information derived from online open sources is starting to become critical in creating an evidentiary basis for international crimes. While journalists have led the development of many newly emerging open source investigation methodologies, courts have heightened the requirements for verifying and preserving a chain of custody—information linking all of the individuals who possessed the content and indicating the duration of their custody—creating a need for standards that are just now beginning to be identified, articulated, and accepted by the international legal community. In this article, we discuss the impact of internet-based open source investigations on international criminal legal processes, as well as challenges related to their use. We also offer best practices for lawyers, activists, and other individuals seeking to admit open source information—including content derived from social media—into courts. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 129

Deepfakes: False Pornography Is Here and the Law Cannot Protect You

By: Douglas Harris It is now possible for anyone with rudimentary computer skills to create a pornographic deepfake portraying an individual engaging in a sex act that never actually occurred. These realistic videos, called “deepfakes,” use artificial intelligence software to impose a person’s face onto another person’s body. While pornographic deepfakes were first created to produce videos of celebrities, they are now being generated to feature other nonconsenting individuals—like a friend or a classmate. This Article argues that several tort doctrines and recent non-consensual pornography laws are unable to handle published deepfakes of non-celebrities. Instead, a federal criminal statute prohibiting these publications is necessary to deter this activity. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 99

Defining and Regulating Cryptocurrency: Fake Internet Money or Legitimate Medium of Exchange?

By: Susan Alkadri Digitalization makes almost everything quicker, sleeker, and more efficient. Many argue cryptocurrency is the future of money and payment transfers. This paper explores how the unique nature of cryptocurrencies creates barriers to a strict application of traditional regulatory strategies. Indeed, state and federal regulators remain uncertain if and how they can regulate this cutting-edge technology. Cryptocurrency businesses face difficulty navigating the unclear regulatory landscape, and consumers frequently fall prey to misinformation. To reconcile these concerns, this paper asserts cryptocurrency functions as “currency” or “money” and should be treated as such for regulatory purposes. It also proposes each state implement a uniform cryptocurrency-specific framework following the Uniform Regulation of Virtual-Currency Business Act. Such a harmonious approach would reduce compliance costs for cryptocurrency businesses, protect consumers, and provide satisfactory state and federal oversight. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 71

The Future of Freedom of Expression Online

By: Evelyn Mary Aswad Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their speech codes with standards embodied in international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR). After the controversy over de-platforming Alex Jones in August 2018, Twitter’s CEO agreed that his company should root its values in international human rights law and Facebook referenced this body of law in discussing its content moderation policies. This is the first article to explore what companies would need to do to align the substantive restrictions in their speech codes with Article 19 of the ICCPR, which is the key international standard for protecting freedom of

Dialing It Back: Why Courts Should Rethink Students’ Privacy and Speech Rights as Cell Phone Communications Erode the ‘Schoolhouse Gate’

By: Nicholas J. McGuire The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional rights while upholding school administrators’ ability to maintain a safe environment. Download Full Article (PDF) Cite: 17 Duke L. & Tech. Rev. 1