Past JLTP Abstracts - Volume 2009 Issue 1

                          Articles

Virtual Justice as Reality: Making the Resolution of E-Commerce Disputes More Convenient, Legitimate, Efficient, and Secure 
by Fred Galves

One of the most significant changes in society over the last decade has been the pervasive use of the Internet in our everyday lives. Indeed, Time magazine even named "You" as its Person of the Year for 2006, acknowledging the prolific growth and undeniable importance of Internet users worldwide. On-demand entertainment, instantaneous personal communication, and immediate access to virtually any information in the world are features of the Internet age that we live in. Perhaps the most significant aspect of the Internet is the economic phenomenon of "e-commerce," that is, the purchase and sale of goods and services using the Internet. E-commerce is increasing rapidly worldwide, and key indicators predict continued growth in the future. The ability of buyers to instantly shop and compare among legions of competing sellers throughout the world, coupled with the ability of vendors to quickly and inexpensively market to millions of potential consumers, makes e-commerce extremely efficient and desirable. This is especially true given the enormous convenience of conducting inexpensive advertising and commerce online, instead of having to pay for traditional advertising and having to physically travel to a particular store to consummate a sale.

Despite all of the growth, convenience, and economic advantage that e-commerce offers, increased Internet sales activity also brings with it an increase in Internet legal disputes, as legal disputes arising out of typical business transactions have not disappeared merely because those transactions are made online. These inevitable e-commerce disputes must be resolved efficiently, fairly, and securely so that online buyers and sellers can place full confidence in e-commerce markets. The Internet must be viewed as a trustworthy online global marketplace fully operating under the rule of law. For this to occur, the principles of fairness, accessibility, and equity available in most physical courts must also be within reach for disputes arising out of online transactions. If e-commerce disputes cannot be resolved efficiently and fairly, then many of the economic and convenience advantages of e-commerce will be threatened due to legal enforcement risks and resulting business uncertainties.

Courts in the U.S. have been desperately trying to adapt their pre-Internet legal systems to adjudicate post-Internet online legal disputes. Despite valiant efforts, traditional litigation, in a physical court chosen by either the online seller or the online buyer, is rarely the optimum forum for resolving an online dispute, especially if the item sold was relatively inexpensive. Because the average online transaction is only about $150.00, a traditional lawsuit is often not an economically worthwhile endeavor for an aggrieved party, given the significant time and cost involved in such a lawsuit. Traditional litigation in a physical court to resolve an online dispute typically ends up subjecting disputants to comparatively expensive, inefficient, and time-consuming lawsuits, often with unpredictable or unsatisfactory results, especially if the parties are from different parts of the country or of the world.

Without a truly accessible and cost-effective legal system to resolve disputes arising out of online transactions, e-commerce participants end up having to buy and sell at their own peril, relying principally on the good-faith performance of their Internet transaction counterparts or on the vagaries of antiquated pre-Internet legal systems. Consequently, many Internet buyers and sellers risk suffering a violation of their rights—such as paying for an item that does not get delivered—because seeking justice in a physical court for an online transaction gone awry becomes a very difficult and often an impractical undertaking. Additionally, some risk-averse buyers and sellers choose not to enter e-commerce markets at all and instead choose to conduct all of their transactions exclusively in traditional physical, non-Internet markets. As a result, even if buying and selling in these traditional markets is not as cost or time effective as transacting online, some individuals may still elect to do so because they perceive the economic and legal risks of face-to-face sales to be considerably lower than those involved in a typical online transaction. The continued high growth rate of e-commerce will likely be compromised if online purchasers and sellers are not operating within a legal construct that generates confidence in the Internet as an arena for legally protected and easily enforceable transactions. Therefore, the rule of law must keep pace with the growth of the Internet so that online purchasers and sellers can have full confidence in the legitimacy of e-commerce, and the realistic ability to pursue a practical and effective legal recourse whenever necessary.

Given the foregoing concerns, this Article argues that the best way to resolve e-commerce disputes involves using the very same convenient and efficient mode in which these transactions are made in the first place, the Internet. Online Dispute Resolution ("ODR") can solve many intractable cost, travel, and inefficiency problems associated with trying to adjudicate e-commerce disputes using traditional litigation in physical courtrooms. Therefore, ODR, as envisioned herein, offers online buyers and sellers the necessary confidence, convenience, fairness, and security to support the growth and stability of e-commerce far into the future.


Searches of Computers and Computer Data at the United States Border: The Need for a New Framework Following United States v. Arnold 
by Sara M. Smyth

The astounding opportunities provided by emerging technologies have also made us increasingly vulnerable to state surveillance and information-gathering. These advances are not only invading our privacy rights but they are forcing us to reassess our understanding of privacy altogether. Security and privacy are important social and political goals that cannot easily be separated or exchanged for one another. These concerns are paramount in the current debate about the constitutionality of border searches of electronic storage devices. On the one hand, many Americans are troubled by the threats posed by terrorist attacks and the importation of contraband, including child pornography. On the other hand, individual travelers have an interest in protecting their privacy, particularly with respect to their personal information. The question of whether the government can conduct a border search of the information on a traveler‘s laptop computer without Fourth Amendment review is a complex issue that is ripe for determination, because technological advances have enabled business and leisure travelers to store vast amounts of private information within a variety of electronic storage devices, including laptop computers, personal organizers, cellular telephones, and CDs. Given these new realities, it is significant that the U.S. Court of Appeals for the Ninth Circuit recently released its judgment in what is undoubtedly its most controversial laptop border search case.

On July 17, 2005, forty-three year-old Michael Arnold arrived at Los Angeles International Airport after a nearly twenty-hour flight from the Philippines. Once he collected his luggage from the baggage claim, he proceeded to customs. He was selected for secondary questioning and asked general questions about his vacation, including where he stayed and the length of his trip. Arnold stated that he had been on vacation for three weeks visiting friends in the Philippines. The customs official then inspected Arnold‘s luggage, which contained his laptop computer, a separate hard drive, a computer memory stick (also called a flash drive or USB drive), and six CDs. She instructed Arnold to turn on the computer so she could see if it was functioning and then turned it over to her colleague. When the computer booted up, the second customs agent found two folders on the desktop entitled "Kodak Pictures" and "Kodak Memories." When they found that the folders contained images of two nude women, the customs agents called in special agents with the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). The ICE agents questioned Arnold about the contents of his computer and detained him for several hours. They examined Arnold‘s computer more thoroughly and found numerous images depicting what they believed to be child pornography. The ICE agents seized the computer and storage devices, released Arnold, and obtained a warrant two weeks later. Arnold was indicted for transportation of child pornography and for possession of a computer hard drive and compact disks containing images of child pornography. He moved to suppress evidence seized by customs officers during the search of his computer equipment, contending that the warrantless search of his laptop computer violated his Fourth Amendment rights.

On October 2, 2006, the United States District Court for the Central District of California held that the government‘s border search of information stored on Arnold‘s computer hard drive or electronic storage device violated the Fourth Amendment. Judge Pregerson reasoned that, because the border search of a laptop computer implicates the dignity and privacy interests of the individual, it is intrusive and must be preceded by reasonable suspicion. However, on April 21, 2008, the Ninth Circuit reversed this decision and ruled that customs officers need not have reasonable suspicion before examining the electronic contents of an international traveler‘s laptop computer. The Ninth Circuit reasoned that the complex balancing tests used to determine whether a search is routine or nonroutine are inapplicable to searches of property at the international border. In rejecting these balancing tests, the Ninth Circuit has significantly undermined the ability of the courts to ensure that government agents cannot conduct a border search of the personal information contained on an international traveler‘s electronic storage device without Fourth Amendment review. This is critical because, due to the ability of electronic devices to store vast amounts of highly sensitive and intimate information, border searches of these devices raise unique Fourth Amendment issues.

I will argue that the Ninth Circuit was wrong to dispense with the routine/nonroutine framework with respect to searches of electronic storage devices and was further incorrect to link the intrusiveness analysis to the physical destruction of property alone. Electronic storage devices must be regarded as sui generis because they are capable of storing vast amounts of intimate and sensitive information. For example, one commentator has observed that "computer hard drives sold in 2005 generally have storage capacities of about eighty gigabytes, roughly the equivalent to forty million pages of text—about the amount of information contained in the books on one floor of a typical academic library." Also, computers contain significant "intermingling" of potentially relevant information, such as child pornography and other electronic contraband, with information that is highly personal, confidential, or even proprietary.


To Surpass or to Conform--What Are Public Licenses For? 
by Shun-ling Chen

The goal of this article is to address the major differences between the legal strategies of the two leading movements advocating for an intangible commons in the digital age, namely the Free Software Movement ("FSM") and Creative Commons ("CC"). These two movements see the expansion of copyright as a threat to the stated goal of copyright law itself: the promotion of science and useful arts. Due to the constraints set by domestic laws and international legal instruments, free software advocates first developed alternative copyright licenses ("public licenses") to facilitate the distribution, access, and use of free software, so that a community that honors sharing and collaborating could be re-established. FSM‘s strategy of using private ordering to create an intangible commons seems to have gained broad support. CC has developed a similar, but more flexible licensing model for other kinds of copyrighted works. In recent years, CC licenses have been widely adopted by on-line communities. However, with the flexibility of the CC licensing scheme comes the ambiguous agenda of its movement. With the proliferation of participants and their various politics carried under the umbrella of CC, one may find it difficult to ascertain if CC-license adopters share the same critiques of the current copyright regime with other intangible commons advocates and if they propose the same solution.

I examine the licensing models of the FSM and CC since public licenses are instrumental in these initiatives, which comprise the broader free culture movement and can embody this movement‘s critiques of copyright law. After providing some background, I compare and analyze the private ordering strategies in the two movements and review some criticisms of the CC model. I will argue that, for communities aiming to build an intangible commons, public licenses have to be designed for a double purpose—on the one hand, they are an internal normative structure of these communities, and on the other hand, an interface, or an external protocol, between these communities and the proprietary world. Taking this dual purpose into consideration, this Article argues that, for the free culture movement to thrive, well-designed public licenses must enable these communities to negotiate with the dominant legal regime for more room and time to experiment with their ways of production and exchange, allowing these communities to strengthen themselves by fortifying a boundary, so that they can defend themselves against the overarching copyright regime and proprietary practices.


"Genetic Surveillance"--The Bogeyman Response to Familial DNA Investigations 
by Jules Epstein

The history of forensic use of DNA evidence to prove identity in criminal prosecutions may be best described as one of trading places—initial acceptance by the prosecution with resistance from criminal defense attorneys; an embrace of the technology by criminal defense attorneys investigating post-conviction claims of innocence and a corresponding prosecutorial resistance to re-examining closed cases; and the prosecutorial support for extending or abolishing statutes of limitations for criminal prosecutions in which DNA evidence is available, with strong opposition from criminal defense forces. A similar tension—from scrutiny and questioned acceptance to almost casual comfort with the science and its role in criminal investigations—pervaded the judicial response to forensic DNA technology and its applications.

That same point-counterpoint tension is now apparent in the dialogue over familial DNA "searches." This technique, described in greater detail in Part I of this Article, may be understood simply as one that finds a partial match between a crime-scene evidence profile and a person in a DNA database where there is at least one locus where there is an exclusion, and then results in the investigation of near relatives of the excluded suspect. This investigative mechanism has been embraced by police services in Great Britain and enthusiastically extolled by prosecutors in the United States, yet it is criticized because of fears that it will disproportionately impact racial minorities and subject innocent members of the families of convicted criminals to "lifelong genetic surveillance." It is also generating debate within the forensic laboratory community, with concerns predominating about efficacy, resource allocation, and privacy. The issue has recently become a significant public policy issue because California has announced a formal adoption of familial DNA searches, and Maryland introduced legislation in 2008 authorizing DNA testing of violent crime arrestees but banning familial DNA investigations.

The thesis of this Article is that such claims are unfortunate hyperbole and short-sighted, and that the familial DNA technology now opposed by criminal defense advocates can also serve innocents who are wrongfully accused. Part I of this Article reviews and assesses the process of using familial DNA in terms of its potential and limitations. Part II addresses the Fourth Amendment implications of use of familial DNA in investigations. Part III examines the arguments against familial DNA investigations and the weaknesses of the arguments against familial DNA investigations. In Part IV, this Article turns to the policy questions that familial DNA "searching" raises, and proposes three important safeguards: pre-screening of samples with Y-STR13 testing to quickly reduce the suspect pool; the destruction of any biological material samples taken in a familial DNA investigation that do not lead to perpetrator identification; and the exclusion (or expungement) from DNA databases of any DNA profiles obtained during the investigation that do not lead to arrest and prosecution. Part IV concludes with an "innocence" perspective on the need for privacy-protected familial DNA investigations.



                          Notes

Digital Manipulation and Photographic Evidence: Defrauding the Courts One Thousand Words at a Time 
by Zachariah B. Parry

A picture is worth a thousand words. Photos do not lie. These clichés have been around since time immemorial, and, until recently, there has been little reason to question the veracity of a photograph‘s thousand words. Only lately have digital cameras and scanners capable of producing high-resolution digital images been available to more than large corporations and wealthy individuals. Now, for less than $100, any consumer can purchase a digital camera capable of producing prints whose quality is indistinguishable from those derived from a 35mm negative. Additionally, image-manipulation software is readily available: although some of the more sophisticated software, like Adobe Photoshop, comes at a moderate price; other programs, like Google‘s Picasa, are capable of simple but effective enhancement techniques and are available for download free of cost. Despite the virtually universal availability of tools for the capture and manipulation of digital images, and the difficulty, sometimes impossibility, of detecting digital manipulations—there is no statute, rule, or case law that guarantees that false-positives (photos that have been authenticated but are not in fact what they purport to be)—will not be admitted as evidence in court.

Part II of this Note discusses the evolution of photography and what role photographs have played as evidence in court. Further, it will demonstrate how the standards for authentication are susceptible to doctored digital images. Part III details the evidentiary implications of the digital movement, and explores how rule-making bodies have reacted, as well as some of the common-law solutions implemented. Moreover, Part III evaluates the adequacy of these attempts to assure that authenticated photographs are in fact authentic. Part IV proposes an authentication scheme adapted to the new paradigm of digital photography that will provide courts with a reason to trust, instead of doubt, digital photographs.


The Influence of Environmental Technology on the Common Law as Green Investment Grows 
by Yusuf Esat

In an era of heightened environmental awareness and concern, the private sector has embraced investment in environmentally-friendly technology. While still a fledgling enterprise, the presence of green technology poses a challenge to the legislature and the courts. Absent a legal obligation to do so, private actors will not fully adopt environmentally-friendly technology until doing so will increase profits. Environmental responsibility in the foreseeable future, therefore, will only be achieved through the law. The response of lawmakers to the emergence of green technology will play a very influential role in determining how industries are run in the twenty-first century.

This Note analyzes the likely effect that green technology will have on the development of the common law, particularly with respect to nuisance law. Looking at the issue from the opposite end, the Note will also briefly discuss the effect that litigation will have on green technology. In order to predict how courts will deal with this new technology, this Note will attempt to draw analogies between the green technology boom and similar phenomena of the past. It will also assess whether the current judicial climate is receptive to green technology.

Part II of this Note provides background on the field of green technology, and it will describe presently available technologies and their associated costs, as well as current trends in research and investment. Part II will also highlight certain aspects of environmental law. These aspects shed light on whether environmental law will accommodate green technology. Part III discusses how the availability of green technology may increase the likelihood of a finding of nuisance and also the granting of an injunction to abate the nuisance. Part III will then analyze this possibility in light of historical approaches to new technologies and judicial obstacles to finding a nuisance for environmentally-harmful activity. Part III will also briefly consider whether litigation will influence green technology in addition to green technology influencing litigation. Part IV will then present the likely response of courts to green technology and suggest how environmental plaintiffs may enhance the effect of green technology on the common law.


The Supreme Court Unjustly Declares Open Season on Patent Dealers 
by Ho-Sung Chung

There was a small inventor who independently invented a method for brokering trust while doing business over the internet. He fell onto hard times initially, but because of his hard work and determination, he filed and secured a patent on his invention. With his patent, he was able to secure funding to hire programmers, counsel, and directors. With his new growing company, his general counsel commenced good faith negotiations with a large online company to sell the small company's patent portfolio, which included four patents. But unbeknownst to the small company, the large company had no intention of buying the patent portfolio. Rather, the large company‘s intention was to find some way to kill the patents. The large company then sent its litigators to look at the patents while still giving the small company the incorrect impression that it was interested in purchasing the patents. Not surprisingly, talks eventually died out between the two companies, and within three months, the big company infringed three of the four patents the small company owned.

Who is the more culpable party here? It should be clear that the large company, having dealt in bad faith with the intention of killing the small company‘s patents, is indeed the "bad guy" here. It may not be surprising to know that this is a real story. However, it may be surprising to know that the big company is the reputable company eBay! What may be more surprising is that in today‘s patent environment, eBay would be viewed as the victim. The small company, on the other hand, would be the aggressor and would be labeled a patent troll because it did not produce an actual product that went directly to consumers. This is despite the fact that the small company developed honest inventions and obtained patents that eBay, in bad faith, infringed upon.

This Note explores the concept of the so-called patent troll and how they have been vilified. Part II will discuss the vilification of patent trolls, who patent trolls really are, and their positive contributions to the public despite their negative image. Part III will analyze the past law regarding the damages patent trolls were entitled to, the landmark United States Supreme Court decision changing that law, and the ramifications of that landmark decision. Finally, Part IV will propose several ways of handling the new Supreme Court decision and its fallout.