Publications

By: Matthew Knopf Introduction: On December 9, 2013, the British Newspaper The Guardian published documents from the National Security Administration (“NSA documents”) provided by the whistleblower Edward Snowden. These documents revealed that surveillance agencies of the United States and United Kingdom governments were conducting intelligence operations in a search for terrorists inside of massive multiplayer online (“MMO”) video games such as World of Warcraft and Second Life. The documents contained a memo and a series of essays that detailed the ways in which video games, even those video games that do not directly connect to the Internet, could be used as recruitment and communication tools for terrorists. However, these operations have brought about privacy concerns for some who worry that their government could or would listen to their conversations as they are playing these videos games. It is not clear how the government collected or accessed the data or communication from these video games. It is likely that government agents created their own profiles and avatars in these games to access the virtual worlds. Additionally, privacy concerns have not be assuaged by the fact that there is no indication from the documents that any of the intelligence operations led to the foiling of any terrorist plots or to the arrest of any criminal. The National Security Administration (“NSA”) and the federal government may have free reign to spy on foreign peoples and foreign governments, but under the U.S. Constitution it does not have the legal authority to spy on American citizens without a warrant. Online video games have players who live across the globe and within the United States. Many of the computer servers on which the video games operate and communicate are inside of the United States. Since the intelligence collecting process has not been revealed, it is unclear if the NSA or other federal agencies have been accessing the data and the monitoring communications of innocent Americans whose identity and nationality may have been concealed behind their virtual avatar. The debate over the expectation of privacy concerning different types of Internet communication is growing, especially concerning social media. Violations of privacy could hinder player anonymity, which is a key component of certain types of online gaming that encourages escapism. On the other hand, ending anonymity could encourage fairer and more civil discourse in the virtual gaming worlds. The revelations of these documents has led to the question of whether there are any expectations of privacy for video game players and the communications between players which occur within those video games.

By: Michael L. Smith Introduction: On May 1, 2013, the first firearm that had ever been produced with a 3D printer was successfully fired. Several weeks later, an engineer in Wisconsin used his own (relatively) cheap personal 3D printer to make a firearm that successfully fired nine shots. These two developments generated national media attention and prompted calls for restrictions on 3D printed firearms. But critics responded by arguing that restricting 3D printed firearms would violate the Second Amendment right to keep and bear arms. The issue of the Second Amendment implications of 3D printed firearms combines an emerging and evolving area of the law with an even more cutting-edge area of technology. The Second Amendment as an individual right is a recent development: before the Supreme Court’s 2008 decision, District of Columbia v. Heller, it was far from clear whether the Second Amendment protected an individual right. In the wake of the Court’s decision in Heller, and its incorporation of Second Amendment rights to the states in McDonald v. City of Chicago, there has been an explosion in scholarly coverage of the Second Amendment as commentators attempt to draw out the implications and limits of the individual right to bear arms. 3D printing is an even more recent development – and courts and commentators are just beginning to address issues that this technology will raise.

By: Matthew Funk Introduction: In 1517, Martin Luther put into motion events that would uproot the hegemony of the Catholic Church in Western religion. His Ninety-Five Theses would be the basis for an enormous upheaval of the sacred status quo, and challenge centuries of religious ordering. His “protest” of the practices of the Catholic Church would be disseminated with the power of the printing press, the pinnacle of information technology at the time, and lead to a great fork in the history of Christianity. Protestantism, with unique movements springing up throughout Europe, would ultimately separate from the oversight of the Catholic Church and create a new religious paradigm. No different in principle, but perhaps in scale, has been the upheaval caused by the confessions of former National Security Agency contractor Edward Snowden. His “leak of [National Security] [A]gency documents has set off a . . . debate over the proper limits of government surveillance.” These leaks have “opened an unprecedented window on the details of surveillance by the NSA, including its compilation of logs of virtually all telephone companies in the United States and its collection of e-mails of foreigners from the major American Internet companies.” This, in turn, has rippled into raucous calls for a new Reformation—one of Internet, not religious, sovereignty and sensibilities. Such calls implicate the principles undergirding the purposes, governance, and even geography of the Internet. And while the calls may not lead to a catastrophic schism on the scale of Christianity’s division in the 16th century, they are certainly loud enough not only to question policy choices regarding the defining information technology of the new millennium thus far, but also to challenge the traditional dynamics of sovereignty-retention in the face of a global online commons.

By: Laura Fleming Introduction: Nowadays, one cannot visit an online shopping website which does not display a privacy policy. A privacy policy is a statement that declares a website’s policy on the collection and release of information about a visitor. Privacy policies usually state what specific information the company collects and whether this information is kept confidential, shared, or sold to third parties. However, very few people actually take the time to read through the privacy policy and consider its implications. While most retailers provide links to its privacy policy, and most companies send an email to subscribers when the company updates the policy, the link is usually in small font at the bottom of the page; thus, many website visitors never even notice that the policy is available for viewing. Despite the growing number of online retailers, there are very few laws regulating companies’ use of customers’ personal information. Most states, with the exception of California, do not require retailers to provide privacy policies. However, while state law may not require a retailer to post a privacy policy, federal law might. For example, by the Children’s Online Privacy Protection Act (COPPA), websites that collect personal information from children under the age of thirteen must provide a privacy policy. Nevertheless, this widespread lack of regulation leads to a lack of privacy, which this society values highly.

By: James Zino The way in which Americans communicate has changed rapidly over the past decade, and the cellular phone has been at the forefront of this revolution, reaching levels of market maturation faster than any mainstream technology since the television. What started as a tool to place calls while on the go has evolved into a device with the processing power of a small computer, where millions of people call, text, tweet, video chat, and stream hours of content every day right from the palm of their hands. While there is no doubt that consumer technology has made incredible strides since the first iPhone ushered in a new product market in 2007 with estimated opening day sales of up to 1 million units, what has changed even more is the invisible infrastructure that allows consumers to be wirelessly connected from even the most remote parts of the country. Although most Americans are familiar with the country’s “Big Four” national cellular providers, (Verizon Wireless, AT&T, Sprint, and T-Mobile), what actually enables these companies to provide wireless internet and cellular service is less well-known. This capability comes from certain bands of the electromagnetic spectrum, which have become an increasingly indispensable commodity for network providers as demand for cellular service surges. Control and licensing of radio spectrum is controlled by the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA). While the NTIA handles the use of spectrum for federal government purposes, the FCC administers spectrum regulation and licensing for all other uses, including state, local, and commercial functions.

By: YooNa Lim Discrimination by lawyers against individuals who are deaf and hard of hearing is not a rare occurrence. Many lawyers decline to represent deaf and hard of hearing individuals as clients, despite the protection of federal and state laws to prohibit discrimination on the basis of disability. Hearing impairments cover a significant range – from those who may not even be aware they have difficulty hearing to those who are deaf and use sign language. Statistics suggest that approximately more than 37 million people, or 16 percent of the population of age above 18, of the United States, report having some degree of difficulty hearing. Despite the large population of the deaf and hard of hearing community, many attorneys fail to recognize their legal obligation to accommodate individuals who are deaf or hard of hearing. Many private attorneys are unfamiliar with their obligations under the ADA or others are unwilling to incur the costs to provide the necessary communication access services. Consequently, it has become difficult for many deaf and hard of hearing individuals to retain attorneys for common legal counseling that are widely provided, such as criminal law proceedings, family law issues, probate, and employment law matters. Even when a deaf or hard of hearing individual successfully meets an attorney, without effective communication, the attorney cannot provide proper representation, unfulfilling their professional responsibilities. Because of the communication barrier, the client may not understand the nature of their legal issue.

By: Sachpreet Bains Introduction: Let’s start with a simple question. How much are you willing to spend on a pair of shoes? Write three zeros on a piece of paper. Now, place a five in front of the three zeros. Next, place a comma after the five. Lastly, place a dollar sign at the very beginning. You have now written down the “small” amount of “$5,000.” It is very hard to justify spending $5,000 on a pair of stylish shoes. In my twenty-six years, the most I have ever spent on a pair of shoes is about $200.00. The French luxury brand, Christian Louboutin, is most renowned and notorious for the high-end shoes it produces for both genders. The brand caters to the wealthy population throughout the world, as its luxury line of shoes can be sold in retail stores for up to $6,000 a pair.1 Known for its red lacquered sole, Louboutin successfully applied for a trademark in 2008. This trademark dealt strictly with how red paint was used on the sole of the shoe. When Yves St. Laurent (which has now changed its name to Saint Laurent Paris) made high-heeled shoes incorporating red soles in its 2009 collection, Louboutin sued for trademark infringement and unfair competition under the Lanham Act.2 This note focuses primarily on the District Court and Second Circuit Court of Appeals decision and the difficulties of trademarking a single color in today’s legal world, along with the road to Louboutin successfully being able to retain his trademark for the red lacquered soles of his shoes.

By: Michael Laven Introduction:  In 2012, when Internet users browsed the World Wide Web looking for the best price on a new Apple product, Thanksgiving flight or car insurance, they inevitably encountered a brave new world of manifestation of assent to a contract: the world of “click-through” and “browse-wrap” agreements. The click-through agreement probably garners the most awareness from the average Internet user, as satisfactory completion usually involves clicking “agree” or “yes” before the one is allowed to continue – a physical action from the user that is mandatory. However, much more commonplace, as at appears on virtually every website, although much less conspicuous, is the browse-wrap agreement. This type of agreement is found on websites of all varieties, including commercial, educational and personal websites, and allows for acceptance of the website’s “terms of use” simply through the conduct of continued use of the website. The user therefore has notice of the terms, may read them if they desire and may discontinue their use of the website if dissatisfied with the terms offered. Bits and pieces of litigation have arisen involving both click-through and browse-wrap agreements, certain issues have been settled, but, with technology evolving so quickly, the current state of the law leaves many uncertainties for web users and designers alike.

By: Christopher Civil Introduction: Recently, a staggering number of copyright lawsuits have been filed by producers of  pornographic videos against individuals who have allegedly illegally downloaded the videos via the BitTorrent Protocol. While the law should respect the legitimate protection of a producer’s  copyright interest, there is significant reason to question the legitimacy of these lawsuits. Mass  copyright infringement lawsuits such as these present significant problems relating to IP address sufficiency, personal jurisdiction, and joinder. This paper presents a comprehensive analysis of mass copyright infringement lawsuits. It first provides an overview of the BitTorrent protocol and the typical proceedings in mass copyright infringement lawsuits. The paper then addresses the myriad of problems that have been identified with such lawsuits. The second half of the paper examines how courts have dealt with mass copyright infringement, and presents results from a comprehensive analysis of jurisdictions and judges that have decided the question of whether joinder is proper in such cases. Amongst other things, this examination reveals that denial of joinder is the prevailing trend. When considered in conjunction with the identified problems associated with such lawsuits, judges that deny joinder thus appear to have solid foundational support.