81 research outputs found
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What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication
Individuals have long had the desire but little ability to control the dissemination of personal information about their health. Law has been a weak instrument for such control, given the articulate and powerful interests that insist upon maintaining and enhancing access and use of others' personal information, with sensitive medical data proving only a sporadic exception. Technology has so far only made exploitation of personal information easier. The evolving federal framework for the protection of electronic medical records is, at the moment, one in which individuals are third-party beneficiaries of what are likely to be flexibly-interpreted, ponderously-enforced fair information practices created in the shadow of a Congressionally-mandated networking of sensitive medical data. This networking promises to greatly lower the costs of accessing and using medical data for any number of purposes--including ones not central to health care, such as direct marketing. It is ushering in what some call the "Era of Promiscuous Publication." The danger this era portends is that what is gained in efficiency of health care provision may be lost in erosion of privacy. Privacy advocates could learn a new approach to this problem from an unlikely teacher: publishers of intellectual property--specifically the American music industry.
The music industry until recently feared ruin from the unauthorized swapping and rebroadcasting of high-quality audio reproductions among its customers, a phenomenon enabled by increasingly cheap networks, cheap data storage, and cheap processors again, the Era of Promiscuous Publication. Despite access to a sympathetic Congress and extensive enforcement resources, the music industry has found recourse to law largely unavailing against this tide of technological progress. The industry is now embarking on a different strategy--changing the technology itself. At the core of the technological response lies the idea of "trusted systems": computer databases of the rights and privileges of specific entities vis-a-vis information, linked to hardware and software that recognize and enforce those rights. If fully deployed, trusted systems could trump the Era of Promiscuous Publication with what I call an "Era of Trusted Privication": one in which a well-enforced technical rights architecture would enable the distribution of information to a large audience--publication--while simultaneously, and according to rules generated by the controller of the information, not releasing it freely into general circulation--privication.
In my view there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy. Their common desire to control the distribution of information, and the music industry's potential success at regaining control through the implementation of trusted systems, offer several lessons to privacy advocates seeking to protect the privacy interests increasingly threatened by the advent of the Era of Promiscuous Publication. The paper explores these lessons first by mapping out the problem presented to the music industry by the advent of fast, cheap, and perfect copies, along with the music industry's legal and technological strategies for regaining control. Second, it describes the similar problem faced by privacy advocates in the arena of medical privacy, the legal solutions that have been and might be attempted, and a hypothetical technological solution that demonstrates the enforcement power of the trusted system. Finally, it looks beyond the enforcement potential of the technological solution to demonstrate how thinking in terms of privication architectures might help negotiate the allocation of rights to medical data to account for the interests of individual "producers" of personal data in ways that need not disparage the legitimate interests of the sophisticated institutional players who wish to consume that data
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The Rise and Fall of Sysopdom
"Sysop" has gone from a term of art known only to the bleeding-edge few to a dusty anachronism known only to the bleeding-gums few, without the usual years-long general linguistic acceptance and respect in between. In case the reader is not among the bleeders: sysops (from "system operators") run electronic areas accessible by typing furiously on one’s networked computer, through which one can meet, talk to (well, at least type at), and develop nuanced social relationships with other people similarly typing and reading. Few know what a sysop is because these electronic areas — aspirationally, and sometimes accurately, known as "online communities" — have never quite flourished and today are in decline.
Indeed, "online community" joins "sysop" in the oversize dustbin of trite or hopelessly esoteric, hence generally meaningless, cyberspace vernacular. Not that "online community" is obscure, like "sysop"; rather, the term’s emptiness results from its abuse. "Online community" is used by Internet companies the way a
motivational speaker uses "excellence," an academic uses "new paradigm," or a lawyer uses "justice": it represents something once craved and still invoked (if only as a linguistic placeholder) even as it is believed by all but the most naïve to be laughably beyond reach. Since it’s applied to almost anything, it now means
vague warm fuzzies and nothing more. The craft of sysoping and the phenomenon of online community (non-hollowly defined) have gone down together even as the Internet has burgeoned, and I want to explain what has happened to sysops as a way of explaining what has happened to the truly great and transformative promise of online communities. Law has played a major role in two distinct ways. First, sysops and the members of the communities they lead have struggled through lawlike reflection to arrive at just solutions to the disputes that inevitably arise in the
course of their interactions. This struggle is a large part of what has made the communities so interesting. Second, fear of the formalistic application of the machinery of the real-world legal system is threatening to drive the amateur sysop to extinction and thereby to destroy what’s left of online community
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Ubiquitous Human Computing
Ubiquitous computing means network connectivity everywhere, linking devices and systems as small as a thumb tack and as large as a worldwide product distribution chain. What could happen when people are so readily networked? This short essay explores issues arising from two possible emerging models of ubiquitous human computing: fungible networked brainpower and collective personal vital sign monitoring
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Book Review: What's in a Name?
In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order - a blandishment, really, expressed as an awkward "statement of policy" by the Department of Commerce, carrying no direct force of law - came about because the management of obscure but critical centralized Internet functions was at a political crossroads.
This essay reviews Milton Mueller's book Ruling the Root, and the ways in which it accounts for what happened both before and after that crossroads
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Be Careful What You Ask For: Reconciling a Global Internet and Local Law
As the Internet becomes part of daily living rather than a place to visit, its rough edges are smoothed and its extremes tamed by sovereigns wanting to protect consumers, prevent network resource abuse, and eliminate speech deemed harmful. The tools are now within reach to permit sovereigns with competing rule sets to play down their differences - whether by countenancing global privatization of some Internet governance issues through organizations like ICANN, coming to new international agreements on substance and procedure to reduce the friction caused by transborder data flows, or by a "live and let live" set of localization technologies to shape the Internet to suit the respective societies it touches.
These shifts will help ease the tension between the certitudes that the Internet is global, while the imposition of regulation is almost always local. Such cures for the longstanding dilemmas of Internet jurisdiction and governance eliminate the originally cherished aspects of a global Internet as well - urging us to consider the iatrogenic effects of bulldozing online activity to conform more to the boundaries of the physical world that preceded it, and explaining why, in the United States and elsewhere, there are contradictory policies emerging about the Internet's future
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From Sony to SOPA: The Technology-Content Divide
Copyright law, which is intended to provide creative rights and financial protection to content creators, has been challenged by technology innovators whose products have the potential to promote free speech, but could also be used to infringe on or facilitate infringement of existing copyright. From the invention of the printing press, technological innovations in communication have been accompanied by concerns for how the technology impacts copyright protections. The advent of the Internet and electronic devices spurred unprecedented accessibility and connectivity of information and ideas, while courts, regulators, and legal scholars in the United States sought to clarify how copyright law applied to these technologies.
This case reviews the recent history of copyright law and explores the conflict between three stakeholders in intellectual property law: copyright holders, technology producers, and legislative enforcers. Beginning with the decision of Sony v. Universal Studios (known colloquially as the “Betamax case”) in 1984 and culminating with the Stop Online Piracy Act (SOPA) in 2011, the legal precedents for intellectual property have yet to mutually satisfy copyright holders and technology producers.
Addressing the Digital Millenium Copyright Act as well as peer-to-peer, torrenting, and other file sharing platforms, this case provides an overview of the touchstone technology and the verdicts associated with these products. This background note prepares students to analyze the 2011 SOPA legislation and discuss its repercussions for copyright law and technological innovation. During class discussions, students analyze the SOPA legislation and articulate their opinions on how it would impact various stakeholder groups. Students then work in groups to amend the legislation with the goal of creating a bill more likely to be signed into law
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Searches and Seizures in a Networked World
This essay responds to Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), http://ssrn.com/abstract=697541.
Professor Kerr has published a thorough and careful article on the application of the Fourth Amendment to searches of computers in private hands - a treatment that has previously escaped the attentions of legal academia. Such a treatment is perhaps so overdue that it has been overtaken by two phenomena: first, the emergence of an overriding concern within the United States about terrorism; and second, changes in the way people engage in and store their most private digital communications and artifacts.
The first phenomenon has foregrounded a challenge by the President to the very notion that certain kinds of searches and seizures may be proscribed or regulated by Congress or the judiciary. The second phenomenon, grounded in the mass public availability of always-on Internet broadband, is leading to the routine entrustment of most private data to the custody of third parties - something orthogonal to a doctrinal framework in which the custodian of matter searched, rather than the person who is the real target of interest of a search, is typically the only one capable of meaningfully asserting Fourth Amendment rights to prevent a search or the use of its fruits.
Together, these phenomena make the application of the Fourth Amendment to the standard searches of home computers - searches that, to be sure, are still conducted regularly by national and local law enforcement - an interesting exercise that is yet overshadowed by greatly increased government hunger for private information of all sorts, both individual and aggregate, and by rapid developments in networked technology that will be used to satisfy that hunger. Perhaps most important, these factors transform Professor Kerr's view that a search occurs for Fourth Amendment purposes only when its results are exposed to human eyes: such a notion goes from unremarkably unobjectionable - police are permitted to mirror entirely a suspect's hard drive and then are constitutionally limited as they perform searches on the copy - to dangerous to any notion of limited government powers. Professor Kerr appreciates this as a troublesome result - indeed, downright creepy - but does not dwell upon it beyond suggesting that the copying of data might be viewed as a seizure if not a search, at least so long as it involves some physical touching or temporary commandeering of the machine. This view should be amplified: If remote vacuum cleaner approaches are used to record and store potentially all Internet and telephone communications for later searching, with no Fourth Amendment barrier to the initial information-gathering activity in the field, the government will be in a position to perform comprehensive secret surveillance of the public without any structurally enforceable barrier, because it will no longer have to demand information in individual cases from third parties or intrude upon the physical premises or possessions of a search target in order to gather information of interest. The acts of intruding upon a suspect's demesnes or compelling cooperation from a third party are natural triggers for judicial process or public objection. If the government has all necessary information for a search already in its possession, then we rely only upon its self-restraint in choosing the scope and depth of otherwise unmonitorable searching. This is precisely the self-restraint that the Fourth Amendment eschews for intrusive government searches by requiring outside monitoring by disinterested magistrates - or individually exigent circumstances in which such monitoring can be bypassed.
Taken together, the current areas of expansion of surveillance appear permanent rather than exigent, and sweeping rather than focused, causing the justifications behind special needs exceptions to swamp the baseline protections established for criminal investigations. This expansion stands to remove the structural safeguards designed to forestall the abuse of power by a government that knows our secrets
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The Un-Microsoft Un-Remedy: Law Can Prevent the Problem That It Can't Patch Later
Microsoft has brilliantly exploited its current control of the personal computer operating system (OS) market to grant itself advantages towards controlling tomorrow's operating system market as well. This is made possible by the control Microsoft has asserted over user "defaults," a power Microsoft possesses thanks to a combination of (1) Windows' high market share, (2) the "network effects" that make switching to an alternative so difficult for any given consumer or computer manufacturer, and (3) software copyright, which largely prevents competitors from generating software that defeats network effects. The author suggests a much-reduced term of copyright for computer software--from 95 years to around five years--as a means of preventing antitrust problems before they arise
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Normative Principles for Evaluating Free and Proprietary Software
The production of most mass-market software can be grouped roughly according to free and proprietary development models. These models differ greatly from one another, and their associated licenses tend to insist that new software inherit the characteristics of older software from which it may be derived. Thus the success of one model or another can become self-perpetuating, as older free software is incorporated into later free software and proprietary software is embedded within successive proprietary versions. The competition between the two models is fierce, and the battle between them is no longer simply confined to the market. Claims of improper use of proprietary code within the free GNU/Linux operating system have resulted in multi-billion dollar litigation. This article explains the ways in which free and proprietary software are at odds, and offers a framework by which to assess their value - a prerequisite to determining the extent to which the legal system should take more than a passing, mechanical interest in the doctrinal claims now being pressed against GNU/Linux specifically and free software generally
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