18,109 research outputs found

    Court Gives Thumbs-Up for Use of Thumbnail Pictures Online

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    In the online world, where intellectual property rights can be violated with the simple click of a mouse, innovation sometimes finds itself engaged in a game of chicken with the law. Recently, online-photo-search engine Ditto.com played just such a game, taking their fight to the Ninth Circuit Court of Appeals. The Ninth Circuit\u27s holding protects Ditto.com\u27s use of copyrighted photos as transformative fair use. But the holding also addresses inline linking and framing, warning that they can violate copyright even in the face of a fair use

    MusicNet & PressPlay: To Trust or Antitrust?

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    Efforts by leading record labels to fill the void they created by shutting down Napster led several to develop their own subscription online music service. The author of the following iBrief assesses the viability of those services in light of a Justice Department antitrust investigation into the practices of the labels in allegedly quashing smaller distributors and colluding to stifle competition, and considers the ramifications of an antitrust suit for both the major labels and their competitors

    National Security Pedagogy: The Role of Simulations

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    This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a mistake. Instead, it makes more sense to work backwards from the skills most essential in this area of the law. The article then proposes six pedagogical goals that serve to distinguish national security law: (1) understanding the law as applied, (2) dealing with factual chaos and uncertainty, (3) obtaining critical distance—including, inter alia, when not to give legal advice, (4) developing nontraditional written and oral communication skills, (5) exhibiting leadership, integrity, and good judgment in a high-stakes, highly-charged environment, and (6) creating continued opportunities for self-learning. Equally important to the exercise of each of these skills is the ability to integrate them in the course of performance. These goals, and the subsidiary points they cover, are neither conclusive nor exclusive. Many of them incorporate skills that all lawyers should have—such as the ability to handle pressure, knowing how to modulate the mode and content of communications depending upon the circumstances, and managing ego, personality, and subordination. To the extent that they are overlooked by mainstream legal education, however, and present in a unique manner in national security law, they underscore the importance of more careful consideration of the skills required in this particular field. Having proposed a pedagogical approach, the article turns in Part IV to the question of how effective traditional law school teaching is in helping to students reach these goals. Doctrinal and experiential courses both prove important. The problem is that in national security law, the way in which these have become manifest often falls short of accomplishing the six pedagogical aims. Gaps left in doctrinal course are not adequately covered by devices typically adopted in the experiential realm, even as clinics, externships, and moot court competitions are in many ways ill-suited to national security. The article thus proposes in Part V a new model for national security legal education, based on innovations currently underway at Georgetown Law. NSL Sim 2.0 adapts a doctrinal course to the special needs of national security. Course design is preceded by careful regulatory, statutory, and Constitutional analysis, paired with policy considerations. The course takes advantage of new and emerging technologies to immerse students in a multi-day, real-world exercise, which forces students to deal with an information-rich environment, rapidly changing facts, and abbreviated timelines. It points to a new model of legal education that advances students in the pedagogical goals identified above, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education

    New Media, Free Expression, and the Offences Against the State Acts

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    New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability and contribute to a volatile social environment. Significant political risks also accompany this novel genre. Hostile actors can use social media platforms to deepen political schisms, to promote certain candidates, and, as demonstrated by the recent Cambridge Analytica debacle, to swing elections. Extremist groups and terrorist organisations can use online interactions to build sympathetic audiences and to recruit adherents. Since 1939, the Offences Against the State Act (OAS) has served as the primary vehicle for confronting political violence and challenges to state authority. How effective is it in light of new media? The challenges are legion. Terrorist recruitment is just the tip of the iceberg. Social networking sites allow for targeted and global fundraising, international direction and control, anonymous power structures, and access to expertise. These platforms create spaces within which extreme ideologies can prosper, targeting individuals likely to be sympathetic to the cause, 24 hours a day, seven days a week, ad infinitum. They offer an alternative reality, subject to factual manipulation and direction—a problem exacerbated by the risk of so-called deep fakes: autonomously-generated content that makes it appear that people acted, or that certain circumstances occurred, which never did. In November 2019 the Irish Government adopted a new regulation targeting social media. The measure focuses on political advertising and to ensure that voters have access to accurate information. It does not address the myriad further risks. This chapter, accordingly, focuses on ways in which the Offences Against the State Act (OAS) and related laws have historically treated free expression as a prelude to understanding how and whether the existing provisions are adequate for challenges from new media

    The Perilous Dialogue

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    The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in Britain. In the United States, we tend to treat “security” and “freedom” as distinct phenomena: policy considerations set against pre-existing, political rights. Security becomes linked to decisions taken by the executive to preserve life—e.g., heightening protection against terrorist attacks by restricting entitlements specified in the Bill of Rights. Thus, Judge Richard Posner argues that in dangerous times, we must adjust constitutional rights to meet the demands of security. Professors Adrian Vermeule and Eric Posner propose “a basic tradeoff between security and liberty.” As Professor Holmes points out, the tradeoff framework is not limited to those who come down more heavily on the security side of the equation; civil libertarians also refer to the framework, arguing for the protection of rights in the face of security demands. In the United Kingdom, in contrast, scholars and policy makers tend to consider security versus freedom as a case of competing rights: the right to life or the right to freedom from fear set against the right to move freely. As Prime Minister Tony Blair announced on 9/11, the exercise of state power would be necessary to protect “the basic civil liberty that people have to go about their business free form [sic] terror.” This framing—competing rights in tension—reflects Britain’s constitutional structure. Measures introduced by Parliament do not have to conform to a written constitution. While some documents, such as the 1215 Magna Carta, or the 1689 Bill of Rights, carry special significance, they are part of a broader system that encompasses legal and non-legal rules. The multiplicity and fluidity of rights, and the constant effort to balance them, reflect Britain’s relationship with Europe, where the European Convention on Human Rights (incorporated into British domestic law through the 1998 Human Rights Act) and European Communities law weave together to create a complex system of rights and rules protecting them. Despite the manner in which the United States and United Kingdom interpret “security or freedom,” reflective of their respective constitutional differences, in both countries the dichotomy between rights and security dominates the counterterrorist discourse. And in both regions, because the dichotomy ignores in its narrow terms of reference the far-reaching effects of counterterrorism, it stifles the debate. The “hydraulic” assumption inherent in the “security or freedom” framework overlooks the possibility that rules—indeed, the rule of law itself—provide security. There are multiple types of securities and liberties at stake. And the framework distorts the “real tradeoffs” that are being made, such as the risks inevitably entailed in the allocation of limited resources. Most importantly, “security or freedom” fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. This article suggests that at each point where the legislature would be expected to push back against the executive’s power—at the introduction of measures, at the renewal of temporary provisions, and in the exercise of oversight—its ability to do so is limited. The judiciary’s role is similarly restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at anything but the margins. With the long-term political and economic effects of this expanded executive strength masked by the immediacy of the “security or freedom” dichotomy, the true costs of anti-terror legislation in the United States and in the United Kingdom have gone uncalculated. Over the past four decades, both countries have seen the relationship between governmental branches altered, individual rights narrowed, and the relationship of the citizens to the state changed. Counterterrorist law has alienated important domestic and international communities, created bureaucratic inefficiencies, and interrupted commercial activity. As these two countries set global counterterrorist norms through important multilateral and bilateral organizations, such as the United Nations (“UN”), the UN Security Council, the G7/G8, and the Financial Action Task Force, the risk increases that these detrimental effects will be transferred to other constitutional democracies. American and British provisions, moreover, have evolved outside the specter of terrorist groups actually using weapons of mass destruction to inflict mass casualties. The proliferation of weapons of mass destruction—and I would add biological weapons to Professor Holmes’s concern about fissile material—together with a growing willingness on the part of extremists to sacrifice themselves, may drive the two countries to take increasingly severe measures. Such provisions could lead to a shift in the basic constitutional structure of both countries

    Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches

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    The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes. This Essay traces the evolution of the border exception, noting the effect of recent Supreme Court decisions, to argue that CBP and ICE are operating outside constitutional constraints. The Essay considers two objections grounded in the legitimate interests of CBP and ICE. It responds, first, that inspection of digital devices differs from the examination of a traveler’s purse or luggage: the level of intrusion and the amount of information obtained changes the quality of the search, triggering Fourth Amendment protections. Second, as an immigration matter, as soon as citizens are identified, absent probable cause, the government does not have the constitutional authority to search their devices at all. Foreigners lacking a substantial connection to the country, however, do not enjoy the same Fourth Amendment protections. It concludes by observing that because of the substance and complexity of the issue, Congress has an important role to play in determining what types of searches are justified

    Guns, Crime, and the Impact of State Right-to-Carry Laws

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