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Jurisdiction and cloud computing: Further challenges to Internet jurisdiction
Copyright © 2013 Kluwer Law InternationalThe importance of this timely research can also be evidenced by the recent European Commission Decision of 18.06.2013 on setting up the Commission Expert Group on Cloud Computing Contracts ((2013/C 174/04)
Lex Informatica: The Formulation of Information Policy Rules through Technology
Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of rules for information flows imposed by technology and communication networks form a âLex Informaticaâ that policymakers must understand, consciously recognize, and encourage
Yahoo and Democracy on the Internet
This article examines the French court order requiring Yahoo to prevent French Internet users from accessing images of Nazi memorabilia available for auction on the company\u27s American web site. The article uses the French case to challenge the popular belief that an entirely borderless Internet favors democratic values. The article starts from the premise that while the Internet enables actors to reach a geographically dispersed audience, the Internet should not change the accountability of those actors for their conduct within national borders. The article shows that Yahoo\u27s extensive business in France justifies the application of France\u27s democratically chosen law and argues that the decision has important normative implications for pluralistic democracy on the global network. Namely, the decision promotes technical changes in the Internet architecture that empower democratic states to be able to enforce their freely chosen public policies within their territories. At the same time, the infrastructure changes will not enhance the ability of non-democratic states to pursue repressive policies within their territories in violation of international law. The article shows the French decision as a maturing of the Internet regulatory framework and argues that the policy rules embedded in the technical infrastructure must recognize values adopted by different states and must not be dictated by technical elites
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Applying the Full Protection and Security Standard of International Investment Law to Digital Assets
This article considers the possibility that digital assets of foreign investors such as websites and computer systems could be protected by the full protection and security (âFPSâ) standard common to many bilateral investment treaties. Such assets can properly be described as investments and the flexible nature of the FPS standard observed in recent arbitration practice could be extended to cover civil disturbances such as 'cyber attacks' against companies. The article considers host state liability with respect to the prevention of harm to digital assets as well as failure to enforce laws that prohibit it. The lack of governmental control over websites suggests that it would be difficult to ascribe state liability under an FPS clause, except possibly in situations of large scale internet infrastructure collapse. A duty to prosecute attacks against digital assets, while common to many jurisdictions and seen in international instruments, is inappropriate as an investment treaty claim because of difficulties in compensation. The FPS standard further appears to incorporate a degree of contextual proportionality linked to the host stateâs resources and this may prevent successful claims against Developing States where many cyber attacks occur
The Path of Internet Law: An Annotated Guide to Legal Landmarks
The evolution of the Internet has forever changed the legal landscape. The Internet is the worldâs largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmesâs classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace
E-Commerce and Trans-Atlantic Privacy
For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens\u27 privacy and business practices. The Article will then turn to the international context and explore the adverse impact, on the status quo in the United States, of European data protection law as harmonized by Directive 95/46/EC of the European Parliament and of the Council of 24 Oct. 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Following this analysis, the Article will show that the âsafe harborâ agreement between the United States Department of Commerce and the European Commission--designed to alleviate the threat of disruption in trans-Atlantic data flows and, in particular, to mollify concerns for the stability of online data transfers--is only a weak, seriously flawed solution for e-commerce. In the end, extra-legal technical measures and contractual mechanisms might minimize privacy conflicts for e-commerce transactions, but an international treaty is likely the only sustainable solution for long-term growth in trans-border commercial interchange
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