Cyberlaw

E-Democracy/E-Government

Cybercrime

IP Law

Art Law

Newsgathering/Libel

Other

 

Cyberlaw

• How should the Electronic Communications Privacy Act and the Patriot Act provisions regarding interception of electronic communications and government access to ISP subscribers' electronic records be amended? (n.b. there are two recent cases on National Security Letters and access to stored e-mail that might be of interest here).
  
  
• Do new authentication systems offer a viable solution to SPAM?  How should such systems be regulated?
  
  
• Develop new privacy legislation aimed at unjustified commercial publication of unduly invasive and detailed records of on-line activity.
  
  
• Propose ground rules for regulation of use and disclosure of geographic location information regarding individuals.
  
  
• What rules should govern deployment of private sector biometric identification systems?
  
  
• What rules should govern distribution of spyware and adware?
  • Should computer owners and/or system suppliers be liable for failure to adopt minimum computer and network security measures?
    
    
• What if anything should Congress do, consistent with constitutional limitations, to protect children from pornographic materials distributed on the web and by email?
  
  
• Analyze enforcement and interpretation of the CAN-SPAM Act.
  
  
• When should software engineers be liable for malfunctioning software? Does it matter whether software is incorporated into consumer goods? Should rules re warranties apply?
  
  
• Should ISPs and the creators of virtual worlds have any minimum set of duties to subscribers in connection with revocation of identifiers?
  
  
• How should Voice Over IP (VoIP) be regulated (if at all)?
  
  
• How should disputes with regard to taxation of Internet access and of Internet-based transactions be resolved?
   
  

E-Democracy/E-Government

• Assess progress of implementation of E-Government Act of 2002.
  
  
• Analyze new requirement for Privacy Impact Assessments by all federal agencies to address how citizen information is used and stored.
  
  
• Write about new Council of Europe electronic voting standards, the first to be promulgated in the world.
  
  
• Analyze World Summit on the Information Society proposals regarding Internet governance. Assess optimal role of ICANN in this process.
  
  
• Should ICANN be found to have complied with its Memorandum of Understanding with the Department of Commerce? Should ICANN be given control over the root zone file?
  
  
• What conditions should ICANN impose with respect to the creation of new Top Level Domains?
  
  
• Should VeriSign be allowed to introduce its Sitefinder service? Analyze the state of the “end to end” principle.
  
  
• When should local governments defer to rules established for conduct in online spaces?
  
  
• How will the net affect activism and organizing?
  
  
• How should courts encourage and regulate the creation of electronic filing systems and online hearings?  Assess new New York state proposals for electronic court filings.  Discuss implications for access and privacy.
  
  
• What changes to election law are required to take into account new forms of communication and fundraising on the Internet?
  
  
• Discuss the role of weblawgs in law practice.
  
  
• Analyze the role of the federal government's Chief Information Officer (CIO) Council.  Discuss reforms.
  
  
• Discuss limitations on patents in the area of e-voting and other public technologies.

Cybercrime

• Analyze the Cybercrime Treaty and make proposals for enhancement or regulation of law enforcement activities related to cybercrime.

IP Law

• Analyze the recent BNetD litigation (Davidson and Associates v. Internet Gateway, 334 F. Supp. 2d 1164 (E.D. M.O. 2004)) on game mods.
  
  
• Assess proposals in the about-to-be-passed Create Act (H.R. 2391) on collaborative research. Assess the impact on cooperative research and development of the amendment to section 103 of the Patent Act to exclude from combination references developed by employees of different companies operating under a joint research and development agreement (overruling the Federal Circuit case Oddz-On Products). 
  
  
• Assess current Department of Justice proposals to increase criminal prosecution of intellectual property
  
  
• Discuss reforms at the root of H.R. 4520, proposed legislation to limit tax deductions on the donation of intellectual property to universities.
  
  
• Analyze the Grokster and Aimster cases regarding peer-to-peer file swapping technologies.
  
  
• Discuss the potential impact on the entertainment software industry of the Marvel Comics v. NCSoft case, the first case dealing with IP infringement by players of videogames. 
  • Compare use of contributory and vicarious copyright infringement claims against platform owners across media (ISPs, P2P, videogames).
    
    
• What “property” regimes should the creators of virtual worlds adopt? Should digital property be handled differently from intellectual property? Does the ability of a game engine to enforce rules regarding copying and use of digital objects provide an opportunity or pose a threat?
  
  
• Should the distribution of peer-to-peer software be regulated? Should those who distribute systems designed primarily to facilitate copyright infringement be liable for contributory infringement or for inducing infringement? Analyze INDUCE Act proposals.
  
  
• Does the FCC have ancillary jurisdiction to enact the "Broadcast Flag" rules for digital television? Should equipment manufacturers be required to build in systems that honor the broadcast flag?
  
  
• Analyze proposed U.S. legislation regarding database protection. Compare to European database directive.
  
  
• How should the ICANN Uniform Dispute Resolution Process for resolving conflicts between trademark owners and domain name holders be revised?
  
  
• Should trademark law be revised to eliminate consequences from failure to police the use of a mark in the context of domain names?
  
  
• How does use in commerce in an on-line environment affect secondary meaning and the strength of trademark rights?
  • Discuss the implications for intellectual property and higher education of distance learning in law schools and universities.
    
    
• Analyze the New Zealand trademark law that gives native groups a veto over the use of their tribal words as marks. Analyze assertions at WIPO of rights to control use of geographic names as marks or as domain names.
  
  
• Ethical limits of patentability.  How are they changing?
  
  
• Software patenting: Comparing Europe and the United States (and recent amendments in Europe to prevent software patenting)

Art Law

• Discuss the evolving definition of "recognized stature" under the Visual Artists Rights Act.
  
  
• Assess the "captive audience" doctrine in art-related cases asserted as a state interest to justify impingement upon an artist's 1st Amendment rights.
  
  
• Address how the Sup. Ct. case of NEA v. Finley has affected the type of art projects submitted for government funding.

Newsgathering/Libel

• Should NY's anti-SLAPP statute apply to allegedly defamatory statements made outside of a public hearing that are not made for the express purpose of influencing matters to be resolved at that hearing (See Duane Reade v. Clark, et al., 2004 NY Slip Op 50174U (NY Sup. Ct.)).
  
  
• Should the tort of intrusion upon seclusion apply to the media's review of allegedly pornographic material filmed without the consent of one party where the media acquired such materials in a lawful manner and did not publish anything that was graphic or that identified the victim?  (See Doe v. CBS, et al. (pending in California Superior Ct.).
  
  
• Whether "bloggers" are protected by the same reporter's privilege that applies to journalists.

Other

• Discuss the enactment of a federal publicity statute (to make publicity rights uniform)
• Projects (projects are more hands-on, designed-oriented and practice-based):
  • Draft electronic voting standards for New York State legislature.
    
    
• Join Cairns project team.  Deploy Cairns in area of interest to you.  Network with organization leaders in that area to implement the project.
  
  
• Build a legal expert system.
  
  
• Build a library of “clickable statutes” that demonstrates the potential applications of interactive diagrams to explain complex legal rules. Survey new approaches to the visualization of legal doctrine.
  
  
• Develop a proposal for use of the Internet to enhance democracy or improve government.
  
  
• Develop a software-based simulation to be used in legal education. Develop a substantive legal game.
  
  
• Apply genetic algorithm tools to find solutions to a multi-party, multi-issue dispute.
  
  
• Design a means of using the net to regulate environmental resources more effectively and to place more control over such resources at the local level.
  
  
• Design and create an online policy jury to oversee the activities of a political official and assess the potential impact of such a mechanism.
  

____________________________________________________________________

Note topics for 2003-2004

JURISDICTION/CONSUMER PROTECTION

*Analyze new trust-building systems for e-commerce – focus on retractable seals, trusted customers and cross-system reputational feedback

Will greater reliability of online identifiers, and/or repuational feedback loops and seals of various types, lower barriers to online commerce? What works and why? Are there implications for building trust in other contexts? Take a close look at SquareTrade on Ebay – and assess whether this model can be generalized. Will secure, persistent email addresses have an impact on how merchants deal with customers? Should reputation points be able to be re-used outside a system on which they are earned?

*Canvas online dispute resolution systems and suggest improvements

What is working and why? Take a hard look at Square Trade. Review Ethan Katsh data.       

How should we define “targeting” for purposes of cross-border regulatory jurisdiction?

Some have suggested that a local government’s jurisdiction to regulate a foreign ecommerce web site should turn on whether the site targeted the local population. Is this a useful approach? How should it be interpreted and applied?

Develop proposed treaty for jurisdiction over consumer protection cases – exploring possible tradeoff with respect to “willful availing” to enforce consumer debt.

Trace the use of the concept of “willful availing” in various jurisdictional contexts. Does it matter whether a merchant is making use of the resources of a local jurisdiction into which sales are made? Should foreign e-commerce sites be exempt from local regulation as long as they do not use local courts to enforce consumer debt?

PRIVACY

*Develop principles for government access to and use of private sector database information regarding online and offline transactions.

The Department of Homeland Security Chief Privacy Officer would be very interested in your analysis. Should the government be pushing to keep detailed information sources “public” so that they can be obtained without any legal process? Should different types of information be treated differently? Should we impose disclosure and use obligations on the government, even if there is no barrier to access?

*Develop principles for treatment of copyrighted and confidential information uploaded to government databases

The Office of Environmental Information would be very interested in your analysis.  Is government liable for disclosure of trade secret, confidential or copyrighted information uploaded to government databases in the normal course?  What protection should government take to prevent unlawful distribution of third-party information?

*Develop proposals for collaborative governance of federated identity systems. (e.g., XNS or Liberty Alliance).

Survey public information regarding plans to create “federated” identity systems – plans to enable diverse sources to issue reliable electronic identifiers. Should those who issue online identifiers have special duties to end users who use those identifiers? How can potential abuses best be constrained?                 

Develop proposal for new privacy statute based on publication of unduly invasive profile (aggregated, detailed information) – beyond “Privacy’s Nightmares”

It will become increasingly possible to collect a detailed profile of an individual’s activity. Should congress pass a law regulating publication of such information without adequate justification?

Propose ground rules for use and disclosure of geographic location information regarding individuals.

We will increasingly, automatically, produce data regarding where we are. How should our privacy interests be protected in this context? Is government access to geographic locator information a search?

Propose ground rules for private sector biometric identification systems

Some private companies are planning to offer new identification systems. How should they set up their rules to reassure customers and protect both privacy and security?           

SECURITY

*See first privacy topic above re government access to private sector databases

Develop regime for regulation of disclosure of “spyware” and non-obvious code

Take a look at the recent discussions between CDT and Gator. Canvas objections to the way in which Gator installs its software, and possible defenses. Should there be a duty to disclose the functionality of code under certain circumstances? A duty not to install code in a manner that defeats uninstall programs? How can disfavored approaches to software code be discouraged or regulated?

Analyze the new approaches to “Trusted Systems”

Take a look at Microsoft’s Palladium project. New software will be able to control access to individual files, or areas of computer memory, based on secure authentication and identification. Is this a good thing? If the system is to be trusted, must the user be distrusted? What are the policy implications of building security of this sort into the operating system of general purpose computers? Are there antitrust issues? Privacy issues?

Liability for failure to implement standard security measures? Duty to disclose security status and procedures?

Computer system security only works if everyone does their part. Should institutions be liable for failing to implement adequate security measures? Is conditioning access to insurance a better answer? Is disclosure part of the solution? Should individuals with insecure machines at home have some risk of liability? Will ISPs be able to play a role in monitoring the security of  home machines? How can the right set of incentives, to enhance security without inappropriately increasing costs or harming interoperability, be put in place?

CONTENT REGULATION

Analysis of Child Online Protection Act (COPA) cases and Child Internet Protection Act  (CIPA) cases – and make suggestions for technology-based and constitutional approaches to protecting children from inappropriate material

Is it constitutional to require speakers to provide an opportunity for others to label their content? May the government become a source of labeling? If filters are an important part of the technical solution, is it appropriate to require the use of labels that make filters effective?

Analyze new legislation calling for a special .kids child-friendly area of the Internet, “.kids.us,”  and possible creation of .kids or  .xxx.  Will the use of Top Level Domains (TLDs) for content control work?

What has been the experience with .kids.us? Should ICANN have a policy with regard to use of TLDs for content control?

Develop a proposal for an extension of Internet Content Rating Association (ICRA) to full content reputation feedback system

If rating works for sexually oriented material, wouldn’t it work for purposes of evaluating the quality of online materials for any topic? Is it feasible to use the ICRA rating and filtering model to develop a rating capability for the entire web?

DEFAMATION AND INTERMEDIARY LIABILITY FOR WRONGFUL ACTIONS

*When should ISPs be liable for wrongful content posted by third parties?

Evaluation of section 230 of the Communications Decency Act and the case of Zeran v. AOL and progeny.  This could be an extension of work done by some of you on on-line dating sites and related to the upcoming conference on “Cupid in Cyberspace: Love and Intimacy in the Digital Age.”

CRIME

Survey new on-line policing and enforcement techniques

Is it ok to have plain-clothes online cops? Should there be any rules governing analysis of packet traffic? Should there be special rules re entrapment online? Analyze efforts to create international cooperation, including pending Cybercrime Treaty.

*Spamming as new crime – cross border enforcement issues

Is the Can-SPAM act making a difference? Are SPAM sources being driven offshore? Would secure email identification and filters work better? Can criminal penalties deter spammers?

Propose additional legal/technical solutions to propagation of malicious code

How can we stop people from launching worms and viruses? Should distribution of tools that allow amateurs to launch denial of service attacks be criminalized?

INTELLECTUAL PROPERTY

Examine current efforts to digitize museum collections and assess intellectual property issues relating to putting artworks on-line

Review recent Appeals Court decision in Verizon v. RIAA and the subpoena power under 512(h) of the DMCA

Analysis of alternative proposals for digital rights management schemes, new technological systems to manage the use of on-line content that are designed to protect against intellectual property infringement (e.g. E-Books)

What will work? Consider implications for privacy, security and fair use.

Analyze legal implications of framing and popup ads

Suggest solutions to the problem of misleading overwriting of the screen (or explain why it isn’t a problem).

Analyze FCC’s new broadcast flag rule concerning next generation television and intellectual property protection

Consider FCC jurisdiction and substantive issues such as implications for fair use and innovation.

*Analyze new legislation re Database protection

Is this a good idea? What are the likely impacts? Compare EU approach.

Examine the intellectual property issues raised by the new art form of Machinima (films made using videogame engines)

TRESPASS/SPAM

*See topic above re CAN-SPAM act

Analysis of literature on trespass theories and its relationship to the Internet and computer systems.  Is misuse of a computer network akin to trespass?

Suggest a regime that allows some control over unwanted access to systems connected to the Internet, without inappropriately preventing innovation and unfairly preventing competition

Analyze arguments re deep linking

Should we allow those who publish on the net to regulate who can and can’t link to them? Are technical defenses adequate?

CRITICAL SYSTEMS/LIABILITY FOR DEFECTIVE CODE 

When should software engineers be liable for malfunctioning software?

Should there be mandatory warranties? Are their any minimum professional standards breach of which might give rise to a cause of action? When should firewall and virus protection software be held responsible for inadequate performance?

ICANN

Propose minimum qualifications and groundrules for establishment of new Top Level Domains (e.g. .com, .org, .net)

The Internet Corporation for Assigned Names and Numbers is considering when and under what conditions it should open new unrestricted top level domains. If you provide a thoughtful analysis, they might just adopt it!

Design for a proposed ICANN consensus policy for reform of the Uniform Dispute Resolution Policy (UDRP)

The Uniform Dispute Resolution Policy (re cybersquatting) is several years old. Many think it has various procedural and substantive flaws. Can you develop the compromise reform proposal that will achieve consensus?

Analyze possible trademark law (Lanham Act) amendment that would eliminate waiver of trademark rights if the user doesn’t police the use of the mark in the domain name system

Would this reduce pressure on the domain name system and its rules? Would trademark owners welcome such a change?

Analyze the Sitefinder service and the dispute about the relationship of innovation at the center of the internet and the nature of Internet Engineering Task Force standards and ICANN’s authority to approve new registry services

Review the materials generated during the recent debates over VeriSign’s Sitefinder service (these can be found on the icann.org site). Evaluate the “end to end” principle. The “principle of least surprise”. Does innovation require stability at lower levels of the protocol stack? Should standards ever be mandatory? How should ICANN approach this question?

GENERAL/MISCELLANEOUS

*Congruence as a design goal for Internet policy-making?

Review “The New Civic Virtue of the Internet” and “Chaos Prevailing on Every Continent.” Develop means of applying the “congruence” principle discussed therein to various online governance regimes. How can we assure that the group impacted by a set of policies overlaps, substantially, with those whose welfare the policies are designed to serve? How can we tell when congruence is present or absent? Do some kinds of collective action automatically help to assure congruence?

ISP/Registry duties to users regarding actions to revoke identifiers

Canvas various situations in which ISPs and other intermediaries issue identifiers on which end users importantly rely. Consider ways in which end users become locked in to such identifiers, by building reputation, establishing links and connections, etc. Does the provider of an online identifier have a duty to act reasonably when revoking the identifier? Most related contracts disclaim any such duty. Should such contracts be enforced? What is the source of whatever duties should apply?

*HIPAA and reporters’ access to medical records

How has new healthcare information privacy law impacted the press’ ability to gather information where the subject of a report has been hospitalized or is being treated by health care providers?  This paper will, ideally, propose amending the statute to clear up some of the confusion it has engendered.

Access to information and newsgathering

This topic might look at journalists’ rights of access to documents in high profile cases such as the Michael Jackson litigation or the Kobe Bryant case

Analyze recent (and on-going) legal battles between cable operators and sports programmers with respect to pricing and tiering (that is - whether sports programming should be carried on expanded basic cable vs a paid tier)

A note on this could look specifically at the sports industry or could look at the potential effects on the entire cable industry and advertising structure, examining such cases as Cablevision v. YES, Time Warner v. YES and others

Proposal for a global dormant commerce clause

What principles can be used to balance the desire of local governments to regulate and the need to preserve a free flow of global commerce and communication? How could such principles be adopted?

Should avatars have rights?

Look at duties of online game hosting companies to protect, or not unreasonably destroy, user investments, including characters creating within a virtual world

Analyze End-User License Agreements of Massively Multiplayer Videogames and assess the impact on intellectual property rights within the game of different contractual regimes

What is the impact of Second Life’s decision to allow players to own their own intellectual property?  Will this bring about greater creativity and innovation?  Or more sales on E-Bay?  Should the game industry attempt to self-regulate and develop common terms for its EULA?

Propose the appropriate regulatory regime for Voice Over Internet Protocol (VoIP)

Should VOIP be regulated? How? Why?

Analyze the International Treaty on Doping in sports and assess implications for regulating the Internet

Look at attempts by municipalities to establish their own broadband networks.

What are the benefits? What are the disadvantages?  What changes in telecom law need to be made to realize free broadband service for residents?

Do Not Call List implementation and its effectiveness

ELECTRONIC GOVERNMENT/ELECTRONIC DEMOCRACY

*Analysis of policy issues raised by new electronic filing systems

Consider privacy issues, possible evolution of online arguments, and potential evolution of document-based cases into group authored hypertext.

*Impact of E-Government Act of 2002

On courts?  On federal agencies?

Analyze the impact of the Internet on election law

What changes are needed?

Comparison of E-Government policy across 2-3 countries

What is the emphasis? How much is being spent?  What kind of legislative change is underway to support the digitization of government?  How is privacy being protected? How is freedom of information being safeguarded?

*How is the Shift to Electronic Government Impacting Freedom of Information and Access to Government Databases?

Possible Projects

(*) identifies projects that are specially recommended because they relate closely to the mission of the Institute for Information Law and Policy

Unlike a Note, a project has a significant design component.  You do not have to have any technical background or programming ability.  Instead, you will be creating a “blueprint” for a tool to change the law and change the world!

*Develop a taxonomic map of collaborative governance systems – survey examples of collaboration

*Survey new tools for law practice – and develop suggested approaches to speeding adoption

*Develop an all-purpose tool for law students – if you had to give every law student a laptop, what would it have on it

*Develop an intro to technology curriculum for law students

*Develop an interactive version of a statue or regulation (for those of you interested in the Asian IP Law Database Project, this could fit here)

*Develop a particular instance of a “law simulator” letting a user explore facts and arguments and then present them in a virtual courtroom

*Survey of visualization tools for law

*Survey of citizen participation in governance statutes and policies

*Apply genetic algorithm software to develop a solution to a complex dispute or policy development problem in a particular substantive area.

*Develop a new design for online collaboration (e.g., a group “issue radar”, asynchronous avatars, joint creation of advice rendered via pseudonym, etc.)

*Develop a substantive legal game (e.g., a “democracy game”, an “icann game”)

*Develop an online application to create contractual relationships for allocation of work responsibility and sharing of proceeds of collective work

*Work with Professor David Post (Temple) to develop a system to show the evolution of legal doctrine in graphical form

Develop a graphical, retractable trust seal that allows groups to collaborate asynchronously to provide (and retract) recommendations

Provide comments for IETF or W3C standard setting activities (e.g. GeoPriv, use of enum vs. dns for RFID links)

Design/Develop a legal expert system. (Work with Fred Parnon to build a jnana application in a substantive legal area)

Work with Daniel Egger to develop the “lexoscope” based on kevin bacon game closeness of cases in a case database

Develop a graphical online docket (e.g., for ICANN)