Past JLTP Abstracts - Volume 2009 Issue 2


The Challenge of ITS for the Law of Privacy
by Frank Douma & Jordan Deckenbach

As Intelligent Transportation Systems (“ITS”) incorporate data-gathering and compiling systems into the transportation infrastructure, new privacy implications stemming from the potential misallocation or abuse of collected data have been created. The United States currently has no comprehensive national regulatory structure for privacy, leaving answers to these privacy concerns to be found through a consideration of a variety of sources of federal and state privacy law. In this paper, the authors examine a number of areas where privacy law could impact ITS projects and technologies, including constitutional privacy protections from criminal prosecution; the developing legal distinctions of reasonable privacy expectations; the role of evolving surveillance technologies in defining privacy rights; the evolution of vicarious criminal liability theories; and the use of tort law in the remediation of privacy violations. There is evidence that privacy law in the United States is undergoing a paradigm shift in response to data collection by new technologies, and the privacy concerns raised by the deployment of ITS are just one of the factors giving rise to a movement towards a stricter, or at least more comprehensive, privacy regime. After a consideration of the legal implications of ITS technologies, the authors present a legal toolbox and taxonomy for ITS developers to utilize in navigating the current legal landscape with their emerging technologies.

Left to Their Own Devices: Should Manufacturers of Offender Monitoring Equipment be Liable for Design Defect?
by Robert S. Gable

In recent years, legislators and other elected officials have promised that electronically monitored home detention, particularly global positioning satellite ("GPS") surveillance, will provide a safe and effective alternative to incarceration. The general public has tended to endorse the concept of electronic monitoring, and trial court judges are understandably eager to have monitoring as an intermediate sentencing option. In light of these social pressures, the offender monitoring industry has grown rapidly in recent years to over include 130,000 monitoring units being deployed daily in the United States.

This Article begins by presenting a brief overview of the origin of electronic monitoring and by describing how contemporary monitoring systems function. Part I also reviews empirical data regarding the impact of monitoring on rates of recidivism. Part II summarizes the current legal status of electronic monitoring, and attempts to demonstrate that case law based on civil rights and negligent tort has not been successful in motivating manufacturers to modify their monitoring systems in a manner that will bring about long-term reduction of criminal acts.

In contrast to civil rights and negligent tort, Part III of this article proposes an alternative legal doctrine (product liability) as a means of improving the safety and effectiveness of the technology. Specifically, attention is focused on issues of product design. This Article argues that an electronic monitoring system should be considered an acceptable product only if the system‘s benefits can be shown, by a risk-utility assessment, to outweigh the potential public harm of placing medium to high-risk offenders into the community. The conclusion reached is that manufacturers are currently distributing a defective product in light of the availability of a more effective and economically feasible design. A proactive defense strategy on the part of manufacturers would be to voluntarily establish a monitoring device registry similar to registries now in use for certain types of medical devices.

Artificial Agents and the Contracting Problem: A Solution via an Agency Analysis
by Samir Chopra & Laurence White

Artificial agents, and the contracts they make, are ubiquitous. Every time we interact with a shopping website, we interact with a more or less autonomous artificial agent that queries the operator‘s database, uses our input to populate it, and sets out the terms of the transaction. Other than establishing the rules that the artificial agent must follow during transactions with customers, the operator does not exercise direct control over the agent‘s choices in particular cases, at least until the operator has a chance to confirm or reject the transaction entered into. Websites that offer users agent-like functionality for their use in their activities online (such as comparing and recommending products, vendors, and services) are becoming increasingly common. Current research programs in artificial intelligence aim to enhance the sophistication of agent systems for use in complex negotiation situations, as simulated in the Trading Agent Competition. Common examples of more autonomous artificial agents are the automated trading systems employed by investment banks that "use intelligent algorithms that respond to market information in real time using short-term predictive signaling techniques to determine the optimal execution timing, trading period, size, price and execution venues, while mini-mizing market impact."

In the electronic networked market place, agents are both common and busy. Rarely is a contract concluded on the Internet without the deployment of some sort of electronic intermediary.

What's on Your Playlist? The Power of Podcasts as a Pedagogical Tool
by Kathleen Elliott Vinson

It is six in the morning and a law student is walking her dog before beginning a full day of classes. Across town a few hours later, a classmate rushes onto a crowded subway train, forced to stand sandwiched between strangers during his commute to school. That afternoon, an evening student sits in rush hour traffic, hoping to make it into the city in time for class. Later that night, a student jogs on a treadmill at the gym after a long day of school. What do all of these students have in common? They are learning by listening to their professors' podcasts. Even though they are located in different places, at different times of the day, while their hands or eyes may not be free to open a book to study, they can still listen and learn. This Article discusses how and why professors can use podcasts to enhance their students' education. Podcasts provide students with an opportunity to listen to their professor outside of the time and space constraints of the classroom. This Article discusses the accessibility, portability, and simplicity of using podcasts. Whether a student is a night owl or a morning person, whether she prefers to listen on her iPod or MP3 player, burn a CD, or listen to it on her computer, the student decides when, where, and how she will listen to the podcast on her own terms and timetables. The Article also examines the benefits and challenges of using podcasts. Finally, it illustrates how professors can use podcasts as a teaching tool to reach today's multi-tasking, technology-savvy student in a different way than traditional classroom teaching methods. Now instead of just listening to rock, pop, jazz, country, or any other musical genre, students can add their law school podcasts to their playlist.

Trade Secret Law and the Computer Fraud and Abuse Act: Two Problems and Two Solutions
by Kyle W. Brenton

The recent federal criminal prosecution of a Missouri woman for allegedly causing the suicide of a teenager through fraudulent use of has focused national attention on the Computer Fraud and Abuse Act ("CFAA"). The Act was originally passed in order to give the FBI a weapon for prosecuting computer hackers, but the statute has grown far beyond its roots. The presence of a private right of action in the statute has led to the development of a body of civil precedents interpreting the Act broadly, and the prosecution in the Drew case was able to point to those cases in urging the jury to find criminal liability for Drew‘s violation of‘s Terms of Service. Academics predicted that the statute might be thus misused in the criminal context as early as 2003. The judge in the Drew case eventually dismissed the case on vagueness grounds. But the harm that may result from broad interpretations of the Act‘s terms is not limited to the criminal arena.

This Article proceeds in four parts. Part II charts the framework of the Computer Fraud and Abuse Act, then explores the substantial judicial disagreement regarding three of the Act‘s key terms: authorization, damage, and loss. Part III delves into substantive trade secret law to explore the elements of a misappropriation cause of action and the policies underlying those elements, and compares the substantive components of trade secret law with the elements and policies of the CFAA. In Part IV, the Article points out the difficulties that arise when state trade secret cases appended to CFAA claims make their way into federal court. It analyzes the legislative history of the Act to determine whether Congress intended it to apply to trade secret misappropriation, and addresses the harms to fundamental notions of federalism that this kind of use of the CFAA can create. Finally, Part V proposes two sets of solutions to the two problems created by the CFAA, one legislative and the other judicial. Both Congress and the federal courts should take action to protect state trade secret law and to prevent opportunistic litigants from forum-shopping their way into federal court via the Computer Fraud and Abuse Act.

Combating Applications for Patents on Obvious Inventions Using a System of Defensive Disclosure
by Martin W. Regehr

Perhaps because the difficulty of making a particular invention can vary greatly from inventor to inventor, defining "obvious" inventions has proven to be a formidable obstacle to consistent, predictable application of the rule against patenting such inventions. But the problem is an important one: the issuing of patents for obvious inventions leads to rent dissipation in patent races, the deadweight loss of patent monopolies, effort wasted on patent searches, and barriers to further innovation.

This Essay describes a system for reducing or eliminating patent protection for inventions made almost simultaneously by independent inventors, and argues that such a system could dramatically reduce the costs imposed by the patenting of obvious inventions.

A patent is a bargain between society and the inventor: For creating and sharing useful knowledge, the inventor is rewarded with a limited-term monopoly on the use of that knowledge. It has long been recognized that society should offer inventors this incentive only when necessary: an inventor, who may be motivated in part by a desire for personal recognition or for a head start in the market, should not be given a patent for an invention she would have made and shared regardless of whether she expected to be rewarded with one.

Other commentators have proposed various modifications to the patent system to address the difficulty of handling obvious inventions, but none of these proposals appears to be both likely to be effective and practical to implement.


Retreat From the Brink of Clarity: Why the Federal Circuit Got In Re Bilski Wrong, and What Can be Done About it
by Jeremy J. Carney

Classification as patentable subject matter is the threshold test in America‘s present patent system. Once the threshold requirement is met, however, there are several other criteria an invention must meet in order to qualify for patent protection. These requirements are utility, novelty, and non-obviousness. Moreover, there are many formal administrative requirements regarding the patent application itself.

This Note focuses only on the threshold test for patentability — classification of an invention as patent-eligible subject matter — and the requirement for non-obviousness as a way to exclude from patent protection software that would otherwise be patent-eligible. Part II gives a brief history of the patent system, and then spells out the current statutory basis for patent eligibility along with major case law interpretation thereof, finishing with the current controversy at the Federal Circuit level. Part III analyzes the most recent and most significant court restriction of patent eligible subject matter as it applies to computer software. Next, the major alternative approaches are analyzed, along with the major policy considerations. Part IV recommends the test that courts should use. Part V is the conclusion.

Content Discrimination on the Internet: Calls for Regulation of Net Neutrality
by Carol M. Hayes

The concept of net neutrality is essentially that entities that enable content exchanges on the Internet should do so in a content-neutral manner. A failure to handle these exchanges without regard to content could result in situations where, for example, Yahoo!’s web content is prioritized so that customers of a particular web service provider can access Yahoo!’s search engine quicker and easier than they can access the search engine of Google, Yahoo!’s competitor.

Like many issues implicating politics and business, net neutrality is an issue that involves proponents calling for government regulation and opponents decrying the idea of regulation and urging society to trust the free market to take care of the issue. A detailed exploration of the arguments against regulation is beyond the scope of this note, which instead proceeds under the assumption that some form of government regulation is desirable, focusing on the questions of "who" and "how:" who should regulate net neutrality, and how should such regulation proceed? This Note will examine a recent decision by the Federal Communications Commission ("FCC") and subsequent actions taken thus far towards regulating net neutrality concerns.

Part II will provide a general background of the relevant history of the Internet, specifically about broadband access and the protocols underlying the Internet, as well as background information about the net neutrality debate and the government entities that have been urged to take leading roles concerning this issue. Part II also provides detailed information about the primary peer-to-peer ("P2P") file sharing protocol that was implicated in the recent FCC decision concerning Comcast’s network management practices. Part III examines the net neutrality debate and how the FCC’s decision about Comcast’s network management practices fits within this debate. Part IV emphasizes the need for bright line rules in lieu of relying on case-by-case adjudications to form policy in this subject area.

The Best Defense is a Good Offense: Student-Athlete Amateurism Should Not Become a Fantasy
by Jennifer A. Mueller

The Eighth Circuit Court of Appeals, in a case between Major League Baseball Advanced Media and fantasy sports league provider CDM Fantasy Sports, recently ruled that Major League Baseball ("MLB") players' names and statistics are not owned by the individual players or the MLB, but instead are in the public domain. This decision gives rise to the question of whether the ruling also applies to amateur athletes and, in particular, college student-athletes who are not compensated for their participation and cannot earn money from endorsements. Fantasy sports league providers say yes. The NCAA says no. Nevertheless, as of the Fall 2008 football season, college fantasy sports leagues now use the names and statistics of current college student-athletes. It is this intersection of amateurism and the recent actions taken by fantasy sports league providers that is the focus of this Note.

Part II discusses the history and evolution of fantasy sports. It explains the origin and development of fantasy leagues for professional sports, and their expansion to college sports. Part II also presents background information on the National Collegiate Athletic Association ("NCAA") Principle of Amateurism and briefly discusses the current issues surrounding amateurism related to fantasy sports leagues. Lastly, Part II summarizes C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, L.P. and examines what the Eighth Circuit‘s holding means for fantasy sports leagues and, in particular, for college fantasy sports leagues. Part III of this Note discusses whether the ruling in C.B.C. Distribution applies to college student-athletes, and the options available to the NCAA, colleges/universities, and college student-athletes. Part IV presents ways for the NCAA, colleges/universities, and college student-athletes to work toward preserving the amateur status of college student-athletes. Finally, Part V offers concluding remarks regarding amateurism and college fantasy sports leagues.

                          Recent Developments

"I Agree" to Criminal Liability: Lori Drew‘s Prosecution Under §1030(a)(2)(C) of the Computer Fraud and Abuse Act, and Why Every Internet User Should Care
by Nicholas R. Johnson

Imagine for a second that you are in law school. Your Professional Responsibility class is wearing on, and you cannot resist the temptation to use your laptop to log on to Facebook and update your user profile. Knowing that some employers use Facebook as a means to screen potential employees, and knowing that taller, good-looking people are statistically likely to earn more money than shorter, less attractive people, you decide to do some fudging: You describe yourself on your Facebook profile as "5‘9", blue-eyed, and "devastatingly handsome," despite the fact that you are really 5'4", brown-eyed, and showing distressingly early signs of male pattern baldness. For emphasis you upload a picture of a young Paul Newman that you found elsewhere on the Internet. Facebook‘s terms of use prohibit such white lies, but you take little notice. Satisfied, you save your changes and return to the class discussion of ABA Model Rule 4.1. Have you just committed a federal crime?

As a matter of intuition, most people would say "no." But Lori Drew, the Missouri woman accused of creating a fake MySpace profile in order to "cyberbully" her daughter‘s former friend, might answer differently. Drew - apparently in an effort to determine whether the friend, Megan Meier, had been spreading malicious rumors about her daughter — masqueraded on MySpace as "Josh Evans," an attractive boy who initially professed an interest in Megan. However, after being spurned by "Josh," Megan — who had a history of depression — committed suicide, and federal prosecutors charged Lori Drew under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.

In Part II, this Recent Development will outline the facts of Lori Drew case, examine the Computer Fraud and Abuse Act and the intent of the legislators who passed it, and describe the ways in which computer users can protect private information they store on their websites. Part III will explore how courts have interpreted the meaning of access "without authorization" to a protected computer, making note of the fact that no court has ever held in a CFAA criminal case that violation of a public website‘s terms of service constitutes "unauthorized access." Finally, Part IV urges courts to reject a contract-based theory of liability under the CFAA, arguing instead that the adoption of a "code-based" standard to define the scope of "unauthorized access" is consistent with Congress‘s intent in passing the CFAA, as well as basic notions of due process and statutory construction.