No Security Through Obscurity: Changing Circumvention Law to Protect our Democracy Against Cyberattacks

Cybersecurity is increasingly vital in a climate of unprecedented digital assaults against liberal democracy. Russian hackers have launched destabilizing cyberattacks targeting the United States’ energy grid, voting machines, and political campaigns. America\u27s existing inadequate cyber defenses operate according to a simple assumption: hide the computer code that powers critical infrastructure so that America\u27s enemies cannot exploit undiscovered weaknesses. Indeed, the intellectual property regime relies entirely on this belief, protecting those who own the rights in computer code by punishing those who might access and copy that code. This “security through obscurity” approach has failed. Rightsholders, on their own, cannot develop effective countermeasures to hacking because there are simply too many possibilities to preempt. The most promising solution, therefore, is to open the project of cybersecurity to as many talented and ethical minds as possible. Openness, not civil remedies and secrecy, is a greater means of ensuring safety. This Article proposes that we adopt a “defense in depth” approach to security that will increase transparency by modifying anticircumvention laws and by facilitating communication between the security community and product vendors

Typhoid Mario: Video Game Piracy as Viral Vector and National Security Threat

Current academic and policy discussions regarding video game piracy focus on the economic losses inherent to copyright infringement. Unfortunately, this approach neglects the most significant implication of video game piracy: malware distribution. Copyright-motivated efforts to shut down file-sharing sites do little to reduce piracy and actually increase viral malware infection. Pirated video games are an ideal delivery device for malware, as users routinely launch unverified programs and forego virus detection. The illicit nature of the transaction forces users to rely almost entirely on the reputation of websites, uploaders, and other users to determine if a file is safe to download. In spite of this, stakeholders continue to push for ineffectual anti-infringement actions that destroy this reputational infrastructure. Scholars and policymakers have not made a case for utility by considering only first-stage economic incentives to create content. In addition to the economic consequences, malware must be taken seriously as a threat to infrastructure and national security, especially in light of Russia’s efforts to infect machines to influence and delegitimize elections. Accordingly, this Article proposes that we adopt a harm reduction philosophy that both dissuades piracy and decreases the malware risk attendant to ongoing piracy

In All Fairness: Using Political Broadcast Access Doctrine to Tailor Public Campaign Fund Matching

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, public financing must be tailored to reduce its monetary correlation with, and corresponding burden on, privately funded speech. This Article proposes matching broadcast advertising access costs as a measured solution. The proposed system does not burden privately funded speech, and it increases media availability: if a privately financed candidate or independent group purchases advertising time, the publicly financed candidate is provided funds to purchase equivalent time. Matching access costs reduces any burden on speakers while importing First Amendment jurisprudence and telecommunications law to support the constitutionality of this system. These laws recognize the First Amendment rights of the electorate, the problem of political advertising market saturation, and the values of an informed citizenry. Essential for democracy is an informed, engaged, and participating citizenry. Matching broadcast access costs increases available information, comports with th

In All Fairness: Using Political Broadcast Access Doctrine to Tailor Public Campaign Fund Matching

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, public financing must be tailored to reduce its monetary correlation with, and corresponding burden on, privately funded speech. This Article proposes matching broadcast advertising access costs as a measured solution. The proposed system does not burden privately funded speech, and it increases media availability: if a privately financed candidate or independent group purchases advertising time, the publicly financed candidate is provided funds to purchase equivalent time. Matching access costs reduces any burden on speakers while importing First Amendment jurisprudence and telecommunications law to support the constitutionality of this system. These laws recognize the First Amendment rights of the electorate, the problem of political advertising market saturation, and the values of an informed citizenry. Essential for democracy is an informed, engaged, and participating citizenry. Matching broadcast access costs increases available information, comports with th