This year’s Symposium is co-sponsored by Stanford’s Center for Internet and Society and will examine First Amendment challenges in the Digital Age. The first panel will explore European and American views of a right to be forgotten and how to balance privacy with free expression. The second panel consists of a discussion of First Amendment architecture, protection of speech spaces, and net neutrality. The third panel will examine Protect-IP and SOPA from a First Amendment perspective.

The Symposium will culminate with STLR’s 15th Anniversary Reception in the Neukom Building Faculty Lounge from 5:00 pm – 6:00 pm, co-sponsored by the Palo Alto offices of Morrison Foerster and Baker & McKenzie.

There has been overwhelming interest in this year’s Symposium and we have reached our capacity. Registration is now closed. The full schedule is available here.

The importance of deterring patent settlements based on potentially invalid patents need not be particularly stressed, as scholars have repeatedly found that invalid patents have significant innovation-stifling/anticompetitive effects. As such, invalid patents can disturb the delicate balance between the patent system and antitrust laws. Although antitrust laws protect robust competition while the patent system enables patentees to suppress competition for extended periods of time, modern thinking has dismantled the concept that the patent system and antitrust laws are in conflict. The common view is that the two bodies of law are actually complementary, as both share the common goal of promoting innovation and enhancing consumer welfare. Consequently, the grant of a patent exempts the holder from the normal prohibition against monopolies, but nevertheless, such immunity might be stripped if the patent at issue is invalid.

This Article will examine the issue of deterring patent settlements involving NPEs based on potentially invalid patents. This Article focuses solely on NPEs, because NPEs appear to own a substantial number of the most-litigated patents, they are more likely to enforce them, and, as will be explained in Part II of this Article, NPEs are primarily interested in settling their patent disputes, because their business model is typically based on enforcing patents and extracting lucrative settlements. The Article asserts that although recent court decisions have made it more challenging for NPEs to obtain very lucrative settlements, the current legal framework is still ill-suited to deter patent settlements based on invalid patents. Moreover, the Article suggests that the fact that recent court decisions have ostensibly made it more difficult for NPEs to obtain lucrative settlements could actually be counter-productive, as sued entities might now find it even more cost-beneficial to settle the case rather than take it to trial.  Consequently, the validity of a patent at issue might never be litigated, which is a very concerning fact, given that NPEs own almost two-thirds of the most-litigated patents. As a major part of the solution to the NPE problem, this Article argues in favor of expanding the role of consumer-led private litigation in deterring NPE patent settlements based on invalid patents, particularly those procured by defrauding the PTO.

To be sure, the Article does not suggest that patent settlements are undesirable, even though it is worth noting here that the generally favorable attitude towards settlements does not necessarily apply to the patent system because of its interaction with antitrust laws. Along the same lines, the Article does not suggest that all NPE patents are invalid, nor that just because a substantial number of litigated patents were found invalid, settled patents are also likely to be invalid. The Article merely argues that the available data and cases suggest that validity of patents in NPE settlements is a legitimate issue and, because of NPEs’ unique business model and the need to maintain the delicate balance between the patent system and antitrust laws, the role of consumers in addressing this issue ought to be expanded.

The Article has seven parts and is divided as follows: Part II of this Article discusses in modest detail the business model of NPEs, and explains why they are so controversial and successful in obtaining lucrative settlements. Part III reviews recent court decisions, including three major Supreme Court decisions that directly affect settlements involving NPEs. Part IV points out that the “new environment” does not adequately solve the NPE problem and argues that it might actually be counter-productive in deterring NPE settlements based on invalid patents, particularly those procured by defrauding the PTO. Part V discusses the issue of consumer standing to bring antitrust claims based on invalid patents via Walker Process claims that, in certain circumstances, can subject the patent holder to punitive antitrust damages. Part V underlines that courts and commentators are currently split on the issue of consumer standing to bring antitrust claims based on invalid patents via Walker Process claims. Part VI discusses a very recent decision from the Second Circuit—the first appellate treatment of the underlying consumer standing issue—in which the Second Circuit has introduced a novel follow-on consumer litigation approach.

Part VII first addresses the criticism of the Second Circuit’s opinion. Part VII then points out that the Supreme Court has recently denied certiorari in the case decided by the Second Circuit, so the underlying consumer standing issue is destined to play out in lower courts. In fact, in two very recent 2011 decisions, lower courts reached opposite conclusions on the issue of consumer Walker Process standing. Furthermore, Part VII suggests that just as Justice Kennedy has taken into consideration NPEs’ unique business model and practices while analyzing policy justifications for granting injunctive relief, lower courts should do the same when analyzing policy justifications for limiting consumer Walker Process standing to follow-on litigation. Finally, the Article concludes that the Second Circuit’s policy considerations for limiting consumer standing to a follow-on litigation do not necessarily apply to NPEs, particularly to those NPEs that the Federal Trade Commission has labeled as patent-assertion entities (PAEs) in its new report released in March of 2011. Therefore, lower courts should lean towards allowing consumers unconditional Walker Process standing in NPE cases in order to deter NPE settlements based on invalid patents. Part VII ends by addressing possible criticism to arguments in favor of expanding the role of consumers in Walker Process litigation.

Although size is important in understanding the nature of the shift, size alone is not the issue. It is also the method of organization and the types of activities that are causing a paradigm shift in the world of patents and innovation.

These entities, which we call mass aggregators, do not engage in the manufacturing of products nor do they conduct much research. Rather, they pursue other goals of interest to their founders and investors. Non-practicing entities have been around the patent world for some time, and in the past, they have fallen into two broad categories. The first category includes universities and research laboratories, which tend to have scholars engaged in basic research and license out inventions rather than manufacturing products on their own. The second category includes individuals or small groups who purchase patents to assert them against existing, successful products. Those in the second category have been described colloquially as “trolls,” which appears to be a reference to the children’s tale of the three billy goats who must pay a toll to the troll waiting under the bridge if they wish to pass. Troll activity is generally reviled by operating companies as falling somewhere between extortion and a drag on innovation. In particular, many believe that patent trolls often extract a disproportionate return, far beyond the value that their patented invention adds to the commercial product, if it adds at all.

The new mass aggregator, however, is an entirely different beast. To begin with, funding sources for mass aggregators include some very successful and respectable organizations, including manufacturing companies such as Apple, eBay, Google, Intel, Microsoft, Nokia, and Sony, as well as academic institutions such as the University of Pennsylvania and Notre Dame, and other entities such as the World Bank and the William and Flora Hewlett Foundation. Nations such as China, France, South Korea, and Taiwan even have their own mass aggregators to varying degrees.

Moreover, the acquisition appetites and patent supply sources are quite interesting. Mass aggregators may have portfolios that range across vastly different areas of innovation from computers to telecommunications to biomedicine to nanotechnology. In some of the acquisition activity, mass aggregators purchase large chunks, and even the majority, of an operating company’s patents and patent applications. They typically pay cash up front, as well as a share of any future profits generated from asserting the patents against anyone other than the selling manufacturer. Mass aggregators have engaged in other unusual acquisition approaches as well, including purportedly purchasing the rights to all future inventions by researchers at universities in developing countries. Other acquisition approaches purportedly include targeted purchases of patents that are of particular interest to the mass aggregators’ investors.

The types of returns promised to investors and the types of benefits offered to participants are also quite different from garden-variety non-practicing entities, as are some of the tactics used in organizing the entities and in asserting the patents. Finally, the scale itself is simply mind-boggling. Mass aggregators operate on a scale and at a level of sophistication and complexity that would have been unimaginable a decade ago. They have taken the prototype strategies pioneered by a prior generation of non-practicing entities and changed them into some of the cleverest strategies yet seen in the intellectual property rights field.

The goal of this article is to shed some light on mass aggregators. We hope to provide some understanding of the nature of the change, to analyze its economics and implications, and to offer some normative considerations. In the descriptive section, we focus on the oldest and largest of the mass aggregators, Intellectual Ventures, which has gone to great lengths to maintain secrecy. Working from public sources and investing thousands of hours of research, we offer a detailed picture of the entity, tracing through approximately 1300 shell companies and thousands of patents. The section also describes in brief form several other mass aggregators, including ones that are public companies.

From its inception, the company’s management takes data security very seriously. The company forms an interdepartmental team to assess potential vulnerabilities to the company’s website, computers, and physical building, creates a written data security plan and policy, and, each year, conducts a data inventory to help identify where it stores the information that it collects and who has access to that information. As the company grows, it may even hire a Chief Privacy Officer who does everything from training employees on how to shred old invoices to making sure that the company’s growing list of outside vendors don’t have disparate data security practices. This company has complied with its obligation to secure consumer data, right?

Maybe not. The Federal Trade Commission’s settlements with SettlementOne Credit, ACRAnet, Inc., and Fajilan and Associates, Inc. suggest that in addition to enacting good practices for their own operations and making sure that their vendors do the same, companies are responsible for making sure that their customers have adequate data security. Although the FTC cites several statutes as the basis for this “duty to police customers,” it is not at all clear that the FTC’s theory could survive judicial scrutiny. Part I of this article provides a brief history of the FTC’s success over the past ten years to position itself as the primary federal regulator concerning issues of data security. Part II discusses the FTC’s recent enforcement actions and settlements with SettlementOne Credit, ACRAnet, and Fajilan. Part III analyzes the limits of the FTC’s data security enforcement powers. As part of this analysis, it reviews the scope of the new duty that the Commission proposes as part of the Reseller settlements, and analyzes whether the duty that the Commission seeks to impose can be supported by the Commission’s authorizing legislation. Finally the article concludes that the Commission’s attempt to create a new duty to police customers lacks firm statutory support and may not be successful if challenged in court.

Today, Bauby might have instead have used a revolutionary new technology from neuroscience to communicate his memoir. A technology known as brain-machine interface enables a computer to “read” brain activity and to decode it through pattern-recognition algorithms. Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, where the subject is able to move a cursor on the computer screen, check email, change the volume, and select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements. So by connecting Bauby to this brain-machine interface, he might have typed out his memoir himself by thinking about the letters of the words he wished to communicate.

Brain-machine interface has already extended beyond the two-dimensional world to the control of three-dimensional objects. Researchers at Duke University pioneered a study in which they connected electrodes to the motor cortex of a monkey’s brain to interpret the electrical impulses arising from the firing of the neurons that signaled movement to the monkey’s limbs. The researchers studied those electrical impulses to learn the neural process involved in moving the monkey’s limbs. They then used this knowledge to build a brain-machine interface device to allow the monkey to manipulate a robotic arm through its thoughts. After training, the monkeys could manipulate a robotic arm that was connected directly to its brain such that the monkey ceased moving its own arm and instead moved the robotic arm to achieve its intended movement through intentional thought.

The next step—human control of robotic arms by thought alone—has become reality. Tim Hemmes, a paraplegic by car accident, moved a robotic arm through brain-machine interface technology that decoded his intention to move the arm and translated it into three-dimensional action. With the help of a new type of chip that was implanted on his brain, Hemmes focused his deliberate intention on moving the three-dimensional arm and succeeded in doing so. To accomplish this feat, Hemmes had to undergo brain surgery whereby electrodes were implanted in his brain to record the electrical signals in his motor cortex brain region. Those electrical signals were connected to the robotic arm and after training for several weeks Hemmes could mentally achieve its movement.

Despite these extraordinary advances that enable individuals to move three-dimensional objects through consciously willing those actions and the ability to now isolate the deliberate intentions in the brain, scholars continue to debate the existence of free will. Whether Bauby had used brain-machine interface to transcribe his memoir or communicated via eye-blinks, a stronghold of scholars would challenge whether he acted freely. Not because Bauby suffered from the tragic and rare neurological condition called locked-in syndrome, characterized by the paralysis of all voluntary muscles except for those that control eye movement while leaving one conscious and able to think and reason. Rather, because such scholars question whether human actors have free will, or merely an illusion of freedom. Scholars who deem free will merely illusory claim that all events are determined by past events, including every event in the mind one would call choice.

This essay illustrates why neuroscience supports a robust theory of human freedom. Rather than condemning humanity to a reductionist view of human actions, neuroscience provides a lens through which a long-standing debate about freedom of choice versus freedom of action can be renewed and resolved. Research investigations into the neural processes involved in preferences, desires, and human actions offer new insights into the flexibility and control that human actors exercise over voluntary actions.

Distinguishing between choice with respect to preferences and desires, and freedom to act in particular ways is consistent with a legal system that punishes for wrongful actions but not wrongful desires that are not acted upon. Yet legal scholars argue that the criminal justice system relies on a much thinner and consequential justification for individual responsibility than freedom of action. The prevailing concept of free will advanced by legal scholars is one that I call “legal free will.” Scholars of legal free will argue that the law does not need a metaphysical account of freedom, nor does it rely upon one for its legitimacy. This essay argues that rather instead of eschewing theoretical free for criminal responsibility, legal scholars could embrace advances in neuroscience to support a theory of freedom that focuses on voluntary actions.

Part I begins with a discussion of legal free will, a concept that appears most controversially in criminal law but also pervades most areas of law. Underpinning the attribution of responsibility in criminal law is a presumption that humans are free to act and to refrain from acting (“legal free will”). But legal free will is in fact a misnomer since the freedom it describes is a vacuous one. Scholars claim that the law holds individuals responsible for their actions not because they are free, but because it is expedient to treat them as if they are free. This leaves the legal system open to persistent attacks on its legitimacy for failing to comport with ordinary intuitions about moral responsibility. In criminal law in particular, legal free will creates a problem because its proponents disclaim any need to grapple with questions about moral responsibility. Because the power of the state and the threat to liberty is at its highest in the control of conduct deemed criminal, the refusal to grapple with questions of theoretical free will leaves the criminal justice system open to a never-ending slew of attacks. Part II illustrates the newest incarnation of these attacks, which have been rooted in neuroscience. Scholars are coalescing around the belief that neuroscience supports determinism and substantiates the claim that at the very least some individuals—if not all individuals—lack moral responsibility. Proponents of this view argue that the legal sanctions of the criminal justice system, such as blame, stigma, and shame, should therefore not follow. Part III then uses emerging studies in neuroscience to support a distinction between freedom of action and freedom with respect to our preferences and desires. This distinction matters, as Part IV argues that freedom of action offers a robust theory of freedom for attributions of responsibility.

In the nearly thirty years since then, that standard has been fairly applied in a variety of contexts, including with respect to the actions of flea markets, landlords, and credit card processors. In Tiffany (NJ) Inc. v. eBay Inc., though, the U.S. Court of Appeals for the Second Circuit took a different approach; it held that the operator of the online marketplace could be found liable only if it had “specific” knowledge of the infringement:

[A] service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods.  Some contemporary knowledge of which particular listings are infringing or will in the future is necessary.

Prior to the Second Circuit’s decision in Tiffany, the inquiry in other contributory liability cases did not explicitly focus on a particular level of knowledge, either specific or general, that would trigger liability.  Rather, courts considered the totality of the circumstances, including the prevalence of infringing activity in the marketplace, and then asked whether that should be sufficient to warrant the imposition of contributory liability.  Under this approach, a level of knowledge much closer to generalized knowledge of widespread infringement, rather than specific knowledge of particular instances of infringement, has traditionally been sufficient to support a finding of contributory liability.

In this respect, Tiffany is difficult to square with the line of cases since Ives, in which courts have applied the contributory infringement doctrine in analogous “brick-and-mortar” contexts.  In Fonovisa, for example, the Ninth Circuit found allegations of generalized knowledge of counterfeiting sufficient to state a claim. The Ninth Circuit upheld the sufficiency of a complaint alleging that the operator of a swap meet—the brick-and-mortar analogue of eBay.com—had knowledge of counterfeiting based on prior seizures followed by law enforcement letters noting continuing, unspecified acts of counterfeiting.  On its face, the evidence in Fonovisa is the same type of  “generalized” knowledge of illegal activity that the Second Circuit found insufficient in Tiffany, while purportedly applying the same contributory infringement test.

This article suggests that, by requiring knowledge of particular infringements, Tiffany introduced an artificial threshold into the standard for contributory trademark infringement liability that did not exist before.  In doing so, Tiffany failed to take adequate account of the common law roots of contributory liability doctrine, which have always taken a more flexible approach and which recognize that “generalized” knowledge of prevalent tortious conduct by third parties, coupled with assistance to the third party, can, under the proper circumstances, be sufficient to trigger a duty to take “reasonable precautions” to prevent that conduct. The article further suggests that the duty to take reasonable precautions should, as it has in the offline context, be triggered in the online marketplace context when an operator of an online marketplace has sufficient “generalized” knowledge of infringement so that it can “reasonably anticipate” that such conduct will continue to occur in the future. “Reasonable anticipation,” this article contends, does not require that the online marketplace have knowledge of “which particular listings are infringing,” but rather may be satisfied by demonstrating “generalized” knowledge that infringement is widespread in the marketplace.

This article further suggests that this more flexible standard is not only consistent with common law traditions, but also is supported by sound policy considerations.  By requiring knowledge of specific infringing transactions, the standard espoused by the Second Circuit in Tiffany effectively:  (a) eliminates the previously well-accepted standard that a party is contributorily liable if it has constructive knowledge of infringement and provides assistance to the infringer; and (b) reduces the test for contributory liability to an actual knowledge test.  An actual knowledge requirement, in turn, reduces the incentives for online marketplace operators to ensure the legitimacy of transactions on their sites and results in a higher incidence of infringing and counterfeiting

In fairness, counterfeit and infringing activity on online marketplaces does raise different issues than trademark violations in the brick-and-mortar context.  Online marketplace providers have less knowledge about the identity of sellers, have no physical access to the goods, and process a significantly greater number of transactions.  Those differences may well affect the way in which the parties’ respective rights and obligations should be balanced, but it should not change the underlying test of how contributory liability is assessed.  The common law standard is built upon the bedrock principle of reasonableness under all the circumstances.  Placing a duty on online marketplaces to take “reasonable precautions” if infringement can be “reasonably anticipated” recognizes and embodies the real-world limitation on the ability of either online marketplaces or brand owners to tackle this issue alone.  Rather, the centuries-old common law principles, applied in the modern, online context, envision a joint cooperative effort to ensure the legitimacy of online transactions for the benefit of all—online marketplaces, brand owners and consumers.

Part I of the article gives background on the growth of online marketplaces and the concomitant rise of counterfeiting and infringing activity.  Part II discusses the current state of the law regarding contributory trademark infringement liability, with a particular focus on the Ives litigation and the Second Circuit’s application of Ives in Tiffany.  Part III analyzes the common law roots of the contributory infringement doctrine.  This analysis concludes that the “generalized” knowledge standard is consistent with the common law origins of contributory trademark liability doctrine.  Part IV analyzes the “reasonable anticipation” standard in light of the underlying policies trademark law is designed to foster, and concludes that a “reasonable anticipation” standard, paired with a duty to take “reasonable precautions,” best furthers those policies.

So far, so good, perhaps—after all, who wants to discourage courts from ferreting out bad guys? And it may be that the courts are muddling their way toward the right outcomes. The problem is that much of what seems to implicitly motivate courts’ decisions fails to find its way into the doctrine, leaving less-than-satisfying guidance to future courts and parties. Intermediary liability analysis often looks like the Supreme Court’s approach to obscenity: we know it when we see it. On the one hand, the Supreme Court has crafted a new doctrine of inducement that turns more on evidence of parties’ motivations and technological design choices than on their active encouragement of infringement by third parties. At the other extreme, courts like the Second Circuit in Tiffany (NJ) Inc. v. eBay Inc. state a broad rule of immunity for parties that lack actual knowledge of specific instances of infringement, while spending a curious amount of time belaboring purportedly irrelevant matters like the extra efforts the defendant took to affirmatively root out the wrongdoing in that case.

In the end, what matters most in these cases is whether the court believes in the defendant’s essential legitimacy and good faith.  In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries—those with a core business model unrelated to infringement—have an obligation to address infringement upon notice, but need not go out of their way to root it out; a reactive approach will suffice to protect them from liability. Bad-faith intermediaries, on the other hand—those who not only benefit from infringement, but intend it to happen—face certain liability, without regard to specific notice of particular acts of infringement.

The trick, of course, lies in understanding how to differentiate between good and bad faith actors. Doctrinally, copyright courts are turning to inducement to do the sorting. Inducers, as bad actors, get none of the protections afforded to other infringement-enabling intermediaries. So what makes someone an inducer? We don’t yet have much case law in trademark law, but copyright gives us some clues. Despite its name, copyright inducement has little to do with exhorting infringement, and everything to do with economic incentive and system design. Inducers are those whose business model depends, at its core, on infringement. Indeed, I believe that this factor largely explain the outcome in suits against intermediaries. And far from defying Sony, I view this development as fully consistent with the normative goal laid out by the Supreme Court in defending the staple article of commerce doctrine: “[t]he staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective—not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.” I will come back to explain why I think this language lies at the heart of today’s intermediary liability rules; but first let me step back and sketch out some of my more preliminary claims.

It seems we may be having another Grokster moment in the law. Just as in the pre-Grokster era, when the staple article of commerce doctrine of Sony Corporation v. Universal City Studios, Inc. was expanding beyond the realm of legitimate innovation to protect purposefully infringing activity—ultimately necessitating corrective action by the Supreme Court—so, too, the DMCA safe harbors, as construed in Viacom International, Inc. v. YouTube, Inc. and by some other courts, are threatening to swallow the very principles of secondary liability they were meant to incorporate. With respect to inducement of infringement liability in particular, at least one recent decision, Columbia Pictures Industries, Inc. v. Fung, has recognized the inherent conflict between DMCA immunity and Grokster culpability. According to Judge Wilson—notably, the same Judge Wilson whose grant of summary judgment in favor of the Grokster defendants at the trial level was ultimately reversed by the Supreme Court—a finding that a defendant induced infringement necessarily renders that defendant ineligible for the Section 512 safe harbors.

This essay reviews Fung and Viacom, then revisits Grokster to demonstrate how the core principles of that case should guide judicial engagement with the DMCA safe harbors. Under the edifying light of Grokster, the missteps of Viacom are apparent, and the logic of Fung is undeniable.

This article explores another litigation-stage approach to overcoming the free rider problem that undercuts patent validity challenges—namely, strong-form joint defense agreements among multiple accused infringers. Strong-form agreements, which go beyond light coordination and information sharing, have long been condemned as unlawful buyers’ cartels. The seminal case remains Jones Knitting Corp. v. Morgan. But current doctrine’s condemnation trades on a category mistake rooted in a fatally simplistic view that patents are commodity property (rather than what they are, which is probabilistic exclusion rights). Contrary to conventional wisdom, a binding commitment among accused infringers jointly to fund a full challenge to patent infringement allegations is not, nor is it akin to, a buyers’ cartel for buying commodities. Rather, it is a research joint venture, the goal of which is to generate valuable—but otherwise inappropriable—information about the patent’s true validity or scope.

This article explores another litigation-stage approach to overcoming the free rider problem that undercuts patent validity challenges—namely, strong-form joint defense agreements among multiple accused infringers. Strong-form agreements, which go beyond light coordination and information sharing, have long been condemned as unlawful buyers’ cartels. The seminal case remains Jones Knitting Corp. v. Morgan. But current doctrine’s condemnation trades on a category mistake rooted in a fatally simplistic view that patents are commodity property (rather than what they are, which is probabilistic exclusion rights). Contrary to conventional wisdom, a binding commitment among accused infringers jointly to fund a full challenge to patent infringement allegations is not, nor is it akin to, a buyers’ cartel for buying commodities. Rather, it is a research joint venture, the goal of which is to generate valuable—but otherwise inappropriable—information about the patent’s true validity or scope.

In his March 18, 2008 message to Oxbridge, sent shortly after the Showbiz sample set went live, Showtime did not commend his crate-digging disciple for his work; instead, he requested that Oxbridge remove the link to the sample set and cease sharing its accompanying list of samples with Oxbeats.com readers. As he wrote to Oxbridge, “[P]ages like this on the internet are no help at all to people like Biz, Showtime, and those that work with them.” Oxbridge agreed with Showtime’s case; within a few hours, the link and list disappeared. Shortly thereafter, the Wikipedia page bearing similar information was wiped clean. Order had been restored to the hip-hop blogosphere.

As the Internet has evolved, Internet users across the world have embraced various forms of online communication, social networking, and social media through their computers, mobile phones, smart phones, televisions, and even game consoles. Internet users spend significant time using “Web 2.0″ technologies and other World Wide Web tools (collectively “Internet tools”) that enable interactive information sharing, user-centered design, collaboration, and a compilation of collective intelligence. Internet tools include communication platforms such as e-mail, instant messaging, online chatting, and texting. Internet tools also encompass commonly used Web 2.0 tools for social networking and online collaboration purposes (collectively “consumer-generated media” or “CGM”), including social media platforms such as blogs, podcasts, wikis, and online video sharing websites such YouTube, microblogging platforms such as Twitter, social networking websites such as Facebook, and virtual communities. Individuals of all ages and backgrounds expend significant time connecting, communicating, collaborating, and even entertaining themselves together with others through CGM and other Internet tools.

With their increasing popularity, CGM and other Internet tools have given rise to many complex legal and ethical issues ranging from enforceable online commercial obligations to personal rights on the Internet to digital criminal acts. From a commercial perspective, the law has reacted to the efforts of individuals, entities, and organizations reaching out to Internet and CGM users for profit. Internet, technology, and information-based companies naturally rely upon the Internet and CGM to promote and deliver products, services, and information. Even the most conventional “brick and mortar” businesses have rushed to establish an online presence on both country native and global Web 2.0 platforms. On a personal level, individual rights and governmental interests often directly clash in an online environment due to the Internet’s speed, relative anonymity, and lack of regulation. As Internet and CGM users electronically disseminate vast amounts of information, governments and individuals are subject to closer scrutiny, increasing criticism, embarrassing truths, rumors, and even harmful untruths. Communications circulated via the Internet can quickly spiral into public relations quagmires or even full-fledged political movements. Accordingly, lawmakers and courts are increasingly tempted to use the law to regulate the Internet and restrict CGM, often at the expense of individual rights. As such, the scope of individual privacy rights on the Internet and privacy obligations of website operators continues to generate much debate. Issues related to freedom of expression, voting, and censorship on the Internet give rise to substantial discussion as well.

Asia is no exception to the recent Internet phenomenon and ensuing legal dilemmas. In fact, Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. As of June 2010, China boasted over 420 million Internet users or “netizens.” Asians living in Hong Kong, Singapore, Taiwan, Thailand, and other parts of Asia are increasingly active on the Internet as well. In the digital age, many Asian societies have also embraced CGM and other online communication mediums. In Asian societies with Confucian traditions, conventional social networks have traditionally played a prominent role, particularly in comparison with Western nations. This prominent role is increasingly translating itself into online platforms and forums.

This paper is organized as follows. In Part II, I look at the information externalities in the retail payment system. This section provides some industry and legal background. It discusses information security as a third-party indirect liability regime, and it assesses the system externalities and liability rules that create misaligned incentives for investments in information security. In Part III, I review the Payment Card Industry Data Security Standard, including examples of its data security rules. I discuss levels of compliance and validation, and review some of the data security breaches that have occurred despite the success in moving the industry toward compliance. In Part IV, I discuss some public policy issues including mandated cost recovery schemes, data notifications laws, specific security laws, action by the Federal Trade Commission to treat security lapses as unfair acts, and general security laws that require reasonable levels of security. In Part V, I discuss end-to-end encryption and chip and PIN as possible upgrades to the current system, and conclude with a recommendation for a public private partnership to explore ways to move the system forward to higher levels of information security. In Part VI, I conclude with a recommendation for a way forward involving government as an active convener of public-private coordinating groups seeking to guide industry upgrades in information security.

This article explores claim construction outcomes at the district court level, including patentee win rates on an element-by-element basis, win rates for broad constructions versus narrow constructions, and win rates by jurisdiction and type of argument. To accomplish this goal, we examined 211 district court Markman decisions from 2009, which collectively construed a total of 1858 disputed claim terms. We culled data from these decisions and performed various statistical analyses to arrive at the outcomes reported herein.

This paper is divided into five parts, including this Introduction. In Part II, we provide a brief background of the current state of claim construction law, including litigation strategies involved in claim construction. In Part III, we explain the methodology used in this statistical study, including limitations of the study. In Part IV, we report the statistical outcomes of our study. In Part V, we summarize our findings and suggest conclusions that can be drawn from them.

After several years of discussion, a proposed settlement was reached. It would have allowed Google to continue scanning copyrighted books into its search index and displaying the text to its users in exchange for the payment of license fees to copyright holders. The proposed display rules were contingent on whether a book was still in print. Additionally, rightsholders could opt out of the settlement either entirely, by requesting the removal of protected books, or partially, by modifying the default display rules.

The proposed settlement came under intense scrutiny and criticism. A number of foreign rightsholders, and even foreign governments, opposed the deal.

As a result, the settlement was amended significantly. One of the main differences between the original and amended settlements was the treatment of foreign rightsholders. While the original settlement applied to rightsholders in all countries, the amended agreement would only apply to foreign books published in Australia, Canada, or the United Kingdom, or registered with the United States Copyright Office as of January 5, 2009.

Conformity with international treaties and agreements to which the United States is party, in particular the Berne Convention and the World Trade Organization (WTO) Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS), has not been a major part of the discussions surrounding the proposed settlement but it is important because incompatibility with TRIPS might trigger a dispute-settlement case against the United States at the WTO and lead— should the United States lose the case partially or entirely—to trade-based retaliation. To mention two examples, in 2000 a WTO panel found that § 110(5)(B) of the Copyright Act was incompatible with Article 13 of the TRIPS Agreement (the so-called three-step test). As of this writing, the panel report has not been implemented, perhaps in part because a binding arbitration report determined that the level of injury caused by the exemption was extremely low. In a more recent case, failure by the United States to implement a panel report that found part of the cotton subsidies paid to U.S. farmers incompatible with WTO rules may lead to the removal of intellectual property protection for U.S. goods in Brazil.

The unprecedented nature of the Google case, however, is that the incompatibility would not result from typical trade measures adopted by legislation or regulation but rather by a court decision. Generally, court decisions are immune (as a practical matter) from WTO review owing to their inter partes nature—that is, they are not measures or requirements of general application. The application of class action procedures, however, that would include a large number of foreign intellectual property holders as part of the covered classes, may open the Settlement to WTO scrutiny.

International treaties may also be relevant directly in the domestic context. First and foremost, they may be invoked when the interpretation of a U.S. statute is unclear, in which case the interpretation most likely to comport with U. S. international obligations should be favored. Second, a treaty such as the Berne Convention may be directly applicable (“self-executing”).

In applying TRIPS to the Google Book Settlement, the first question that comes to mind is whether the Original and/or the Amended Settlement constitute a prohibited formality under the Berne Convention, and thus also the TRIPS Agreement. The Amended Agreement—because it treats rightsholders in three foreign countries differently—raises two related questions, namely (a) whether the national treatment principle is violated, and (b) whether the proposed settlement is compatible with the most-favored nation clause. Let us sequentially consider both questions.

Professor Barton Beebe, in his empirical analysis of multifactor tests for trademark infringement nationwide, found that judges “employ ‘fast and frugal’ heuristics to short-circuit the multifactor analysis” and challenged the conventional wisdom that no single factor in the multifactor test is dispositive. However, the limited temporal scope of his inquiry (2000−2004) raises the question of whether his results are typical for trademark cases or just a five-year anomaly. This paper attempts both to determine whether Beebe’s findings hold true over a longer, fifteen-year period and to discover any new information that sheds light on how judges decide trademark cases. Part I.A describes our methodology while Part I.B provides background statistics on our data set. Part II presents analysis of factor correlation, outcome classification trees, stampeding, and each individual factor, including comparison with Beebe’s results, as well as description of historical trends in our data. Part III analyzes the effect of other considerations related to the multifactor test—whether or not the products are in competition, whether the party names are the trademarks at issue, whether the court indicates one factor can be dispositive of the outcome, and whether or not the court considers factors in addition to those listed in the Second Circuit’s Polaroid test.

That changed in 2001, when the PTO began publishing data on pending applications, and when the Patent Application Information Retrieval (“PAIR”) system allowed the public to track the fate of those applications in real time. In this paper, we use those changes to report—for the first time ever—systematic data on the fate of applications submitted to the PTO. We are able to confirm much received wisdom, but also to offer some surprising results.

This paper also applies an in-depth analysis of Supreme Court jurisprudence to elucidate questions that Quanta left wide open—to what extent a patent owner can contract around the principles of exhaustion, and what types of remedies are available to those patent owners. The prior case law shows that license restrictions that are within the scope of patent rights have always been allowed. License restrictions that are not within the scope of patent rights, however, are considered patent misuse; attempts to contract around exhaustion through these impermissible restrictions are ineffective, and patent exhaustion applies. Finally, this paper argues that the distinction between restrictions on sale and restrictions on use is likely untenable, and it proposes a rule to determine whether remedies are available in patent law, contract law, or neither.

Again, as I stressed in my earlier article, the reality is that neuroimaging is fraught with uncertainties, that the steps used in the production and presentation of neuroimaging evidence are “[n]ot only . . . not standardized, they are easily manipulated by a person with knowledge of the technology.” Some researchers characterize neuroimaging evidence as “indistinct.” Amanda Pustilnik, by way of example, concludes that “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality.
With this as backdrop, I turn to the topic that I have taken on for this article: what impact neuroimaging evidence will have on a series of “criminal procedure situations,” the resolutions of which are inextricably intertwined with pre-existing socio-political views and attitudes of judges and jurors: (1) the implications of Ake v. Oklahoma (an indigent defendant’s access to expert testimony) in cases where neuroimaging tests might be critical; (2) the defendant’s competency in consenting to the imposition of a neuroimaging test or examination; and (3) the impact of medications—specifically, antipsychotic medications—on a defendant’s brain at the time that such a test is performed. I hope that this article spurs some additional hard thinking about this topic.

Again, as I stressed in my earlier article, the reality is that neuroimaging is fraught with uncertainties, that the steps used in the production and presentation of neuroimaging evidence are “[n]ot only . . . not standardized, they are easily manipulated by a person with knowledge of the technology.” Some researchers characterize neuroimaging evidence as “indistinct.” Amanda Pustilnik, by way of example, concludes that “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality.

With this as backdrop, I turn to the topic that I have taken on for this article: what impact neuroimaging evidence will have on a series of “criminal procedure situations,” the resolutions of which are inextricably intertwined with pre-existing socio-political views and attitudes of judges and jurors: (1) the implications of Ake v. Oklahoma (an indigent defendant’s access to expert testimony) in cases where neuroimaging tests might be critical; (2) the defendant’s competency in consenting to the imposition of a neuroimaging test or examination; and (3) the impact of medications—specifically, antipsychotic medications—on a defendant’s brain at the time that such a test is performed. I hope that this article spurs some additional hard thinking about this topic.

Some sites go even further and require completion of a registration process that involves relinquishing a zip code, email address, and full name. Compared to the non-wired world, the increase in monitoring capability in these circumstances is exponential. The extent of this information gathering is not only annoying, but also increasingly relevant as more and more government data mining programs, some of which rely on information gathered by private companies, are revealed to the public.

This Note is about how this information should be treated. Part I describes how these systems function to track browsers’ interactions with websites. Part II examines problems with these systems, including the vulnerabilities they create for user privacy. Part III investigates techniques available to bypass compulsory registration. Part IV suggests how companies should address this issue, and Part V proposes a federal law, modeled on the Video Privacy Protection Act, to regulate the gathering and sharing of user information.

Some sites go even further and require completion of a registration process that involves relinquishing a zip code, email address, and full name. Compared to the non-wired world, the increase in monitoring capability in these circumstances is exponential. The extent of this information gathering is not only annoying, but also increasingly relevant as more and more government data mining programs, some of which rely on information gathered by private companies, are revealed to the public.

This Note is about how this information should be treated. Part I describes how these systems function to track browsers’ interactions with websites. Part II examines problems with these systems, including the vulnerabilities they create for user privacy. Part III investigates techniques available to bypass compulsory registration. Part IV suggests how companies should address this issue, and Part V proposes a federal law, modeled on the Video Privacy Protection Act, to regulate the gathering and sharing of user information.

This Article: (1) explains the rationale underlying the enablement doctrine; (2) traces how the doctrine has evolved into various inconsistent tests; (3) analyzes the three new decisions; and (4) rejects the “full scope” rule that these decisions advance. Specifically, this Article argues that in the predictable arts, the full scope rule is extremely difficult to apply and will cause unnecessary litigation. Moreover, the enablement doctrine is a blunt instrument that rewards unintended beneficiaries and cannot consider all the facts important to an overbreadth analysis. Therefore, the enablement doctrine is not well suited to addressing the problem of generic or overbroad claims.

This Article concludes that the Federal Circuit should take a step back from the full scope rule and return to the principles set forth in its earlier decisions. Finally, this Article suggests that if the Court truly wishes to address overbroad or generic claims, the doctrines of claim construction and the reverse doctrine of equivalents are better vehicles for accomplishing that goal.

This Article concludes that the Federal Circuit should take a step back from the full scope rule and return to the principles set forth in its earlier decisions. Finally, this Article suggests that if the Court truly wishes to address overbroad or generic claims, the doctrines of claim construction and the reverse doctrine of equivalents are better vehicles for accomplishing that goal.

Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of the human will. Jean-Dominique Bauby authored the memoir after suffering from a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, he blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that she had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides the gripping detail of what it means to have full mental capacity and lack freedom of action to express one’s thoughts, desires, emotions, and expressions of humanity. That he could share his story is at once extraordinary and tragic that anyone should suffer the fate of such obstacles to effectuating his will.
Today, Bauby might have instead used a revolutionary new environment. An emerging technology known as brain-machine interface is under development to transmit information to the brain from the external world, but also to translate brain activity into action on external objects in the world.1 Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, enabling a subject to move a cursor on a computer screen, to check email, to change the volume, and to select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements, without moving any part of his physical body.2 By connecting Bauby to this brain-machine interface, he might have typed out his memoir himself by thinking about the letters of the words he wished to communicate.

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In this paper we will demonstrate that functional brain images should not be admitted into courts to prove criminal mental states. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when introduced to prove a defendant’s past mental state, and almost certainly more prejudicial than probative on balance. Functional images are also neither generally accepted nor scientifically valid for this purpose. So, given that functional brain images do not meet any of the relevant evidentiary standards, why would they be admitted at all during the guilt phase to prove mental states? Possible answers to this question range from the ordinary human error and legal bias, to improper authentication of the images and commercial scientists pushing their wares. Put simply, the adversarial process may not always work properly to keep the junk out.

In Section I of this article, we laid out the terrain of how exactly functional brain imaging is being used in courts to negate mens rea and what this means for the criminal law. In Section II, we will look closely at the science behind functional neuroimaging, specifically functional magnetic resonance imaging (fMRI). In so doing we will critically examine the complex and unobvious steps required to produce the colorful brain images. In Section III we will apply the rules of evidence to the scientific findings from Section II, and will reveal why any marginal probative value may be substantially outweighed by the potentially prejudicial effects of brain images, even if other admissibility hurdles are cleared. In the event that the technology advances such that its prejudicial value can be sufficiently mitigated, in Section IV we will suggest some guidelines for properly assessing its evidentiary value.

Under State Street, claims to a process were eligible for patent protection as long as they produced a “useful, concrete and tangible result.” Now, the Federal Circuit considers “that inquiry . . . insufficient to determine whether a claim is patent-eligible under §101,” and has adopted the “machine-or-transformation test.” Therefore, today, an inventor wishing to acquire a patent on a new process needs to ensure that her innovation is either connected to a specific machine or transforms an article.

The concept of an intention lies at the heart of the attribution of both moral responsibility and legal liability in the law of torts and of crimes. It does so in two ways. The first is as a marker (arguably the marker) of serious culpability in the doing of wrongful actions. As both the law of crimes and of torts recognize, doing some wrongful action because one intended to do it merits greater blame and more severe sanctions than does doing that same wrongful action recklessly or negligently. This implication of intention for responsibility is learned early on by children, who frame serious accusations of others in terms of their doing things “on purpose.” As Justice Holmes famously put it, “even a dog knows the difference between being stumbled over and being kicked.” Criminal law shares with dogs and children this emphasis on intention as essential to serious blame. As the U.S. Supreme Court once put it, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is…universal and persistent in mature systems of law…[and] is almost as instinctive as the child’s familiar exculpatory, ‘But I didn’t mean to’…”

The second way in which intention figures into attributions of responsibility has to do with wrongdoing rather than culpability. To do wrong is to act in a way that morality or the law prohibit, and intentions are at the root of action and agency. The very possibility of persons doing actions depends on persons having intentions. The old way of putting this was to say that “every action must be intentional under some description of it.” A more modern rendition is to say that every action begins with an intention, in the sense that intentions must be the immediate cause of those bodily movements through which persons act, for those movements to be actions at all.
What are intentions? An older style of philosophy of mind translated such questions from “the material mode” to what was called “the linguistic mode.” The question then became, “what do we mean by our usages of the word, ‘intention?’” Despite the refusal of contemporary philosophy to equate these two “modes,” asking after the common concept of an intention will be a useful place to start. Finding the criminal law to be as instructive as ordinary speech, I shall in this section briefly mine both bodies of discourse for their meaning(s) of “intent” and like terms.

Introduction

If the general case for copyright is an uneasy one, the case for copyright in light of the First Amendment is harder still. How can a body of law that functions to empower private actors to restrict expression be accommodated within a constitutional order so committed to the liberty of the mind? To date, the answers to this question have been unsatisfactory, primarily because they fail to properly appreciate the constitutional balance struck between the Copyright Clause and the First Amendment—or so I will argue.

My negative claim is that most attempts to square copyright with free speech suffer from one of two shortcomings. Some rely on the definitional coherence between free speech and copyright to conclude that copyright laws as they exist are presumptively constitutional and that the First Amendment is only implicated when Congress “alter[s] the traditional contours” of copyright law. But this approach confounds consistency in principle and consistency in practice, and it cannot provide sufficiently meaningful free speech limits on copyright. Others doubt copyright’s “built-in First Amendment accommodations” and instead attempt to build free speech limits from the ground up. But doing so ignores the constitutional balance struck at the Framing, treating copyright like any other restriction on expression.

The Copyright Clause itself, I will argue, is an expression of First Amendment values, and it ought to be enforceable as such. In other words, the clause’s internal limits—including, for example, originality —are not merely the formal boundaries of congressional power under the Copyright Clause but are instead free speech principles that warrant careful application. In some ways, this free speech theory of copyright is unremarkable, since it is consistent with the Court’s view that “the Framers intended copyright itself to be the engine of free expression.” At the same time, the free speech theory of copyright helps answer a number of complicated questions, from whether Congress can appeal to commerce or treaty powers to avoid Copyright Clause limits (it can’t) to whether the Court’s “traditional contours” approach in Eldred v. Ashcroft is consistent with its suggestion that copyright embodies free speech values (it isn’t).

Part I explains why attempts to describe the First Amendment limits on copyright have thus far fallen short. I begin with a taxonomy of these attempts. Arguments ultimately fail in one of two ways, which I label, for simplicity, “accommodationism” and “unexceptionalism.” The accommodationists overemphasize the Framers’ vision of consistency between copyright and free speech, whereas the unexceptionalists seem to ignore the constitutional balance altogether. Missing in these dueling accounts is an approach to Copyright Clause limits that embraces copyright as the engine of free expression, resisting the unexceptionalist impulse to treat copyright like any other kind of law, while recognizing the fact that Copyright Clause limits exist to protect free expression.

Part II outlines a free speech theory of copyright, which is an attempt to fill in this gap. I argue that the Copyright Clause imposes limits on congressional power that embody free speech principles, and these limits are a necessary condition—both historically, as a description of the motivations of the Framers, and analytically—for the coherence of copyright law and the First Amendment. The clause’s limits are thus in a real sense free speech protections, and they should be enforced as such. Having established the importance of Copyright Clause limits, I describe how each of them ought to be applied in practice.

Part III considers the implications of the free speech theory of copyright for a central issue of constitutional copyright law: whether and how the Copyright Clause’s limits apply externally to other enumerated powers. This issue is made especially salient by recent challenges to copyright-like laws concededly inconsistent with the Copyright Clause that have been passed pursuant to either the Commerce Clause or the Treaty Clause.

If the general case for copyright is an uneasy one, the case for copyright in light of the First Amendment is harder still. How can a body of law that functions to empower private actors to restrict expression be accommodated within a constitutional order so committed to the liberty of the mind? To date, the answers to this question have been unsatisfactory, primarily because they fail to properly appreciate the constitutional balance struck between the Copyright Clause and the First Amendment—or so I will argue.

My negative claim is that most attempts to square copyright with free speech suffer from one of two shortcomings. Some rely on the definitional coherence between free speech and copyright to conclude that copyright laws as they exist are presumptively constitutional and that the First Amendment is only implicated when Congress “alter[s] the traditional contours” of copyright law. But this approach confounds consistency in principle and consistency in practice, and it cannot provide sufficiently meaningful free speech limits on copyright. Others doubt copyright’s “built-in First Amendment accommodations” and instead attempt to build free speech limits from the ground up. But doing so ignores the constitutional balance struck at the Framing, treating copyright like any other restriction on expression.

The Copyright Clause itself, I will argue, is an expression of First Amendment values, and it ought to be enforceable as such. In other words, the clause’s internal limits—including, for example, originality —are not merely the formal boundaries of congressional power under the Copyright Clause but are instead free speech principles that warrant careful application. In some ways, this free speech theory of copyright is unremarkable, since it is consistent with the Court’s view that “the Framers intended copyright itself to be the engine of free expression.” At the same time, the free speech theory of copyright helps answer a number of complicated questions, from whether Congress can appeal to commerce or treaty powers to avoid Copyright Clause limits (it can’t) to whether the Court’s “traditional contours” approach in Eldred v. Ashcroft is consistent with its suggestion that copyright embodies free speech values (it isn’t).

Part I explains why attempts to describe the First Amendment limits on copyright have thus far fallen short. I begin with a taxonomy of these attempts. Arguments ultimately fail in one of two ways, which I label, for simplicity, “accommodationism” and “unexceptionalism.” The accommodationists overemphasize the Framers’ vision of consistency between copyright and free speech, whereas the unexceptionalists seem to ignore the constitutional balance altogether. Missing in these dueling accounts is an approach to Copyright Clause limits that embraces copyright as the engine of free expression, resisting the unexceptionalist impulse to treat copyright like any other kind of law, while recognizing the fact that Copyright Clause limits exist to protect free expression.

Part II outlines a free speech theory of copyright, which is an attempt to fill in this gap. I argue that the Copyright Clause imposes limits on congressional power that embody free speech principles, and these limits are a necessary condition—both historically, as a description of the motivations of the Framers, and analytically—for the coherence of copyright law and the First Amendment. The clause’s limits are thus in a real sense free speech protections, and they should be enforced as such. Having established the importance of Copyright Clause limits, I describe how each of them ought to be applied in practice.

Part III considers the implications of the free speech theory of copyright for a central issue of constitutional copyright law: whether and how the Copyright Clause’s limits apply externally to other enumerated powers. This issue is made especially salient by recent challenges to copyright-like laws concededly inconsistent with the Copyright Clause that have been passed pursuant to either the Commerce Clause or the Treaty Clause.

I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray.

In highly simplified form, what we think of as science today began its history deeply entwined with philosophy and theology. During the Scientific Revolution, science separated from other types of intellectual endeavor, although the lines of demarcation were never solid. In the mid-twentieth century, philosophers challenged the notion that science could be so neatly discrete, although they were unable to settle on a coherent definition. An uneasy truce developed in which science is, at best, defined as a cluster of concepts, albeit ones that do not work individually or even as a whole. For my purposes, the important point is the following: those things that make science what it is are a far cry from law’s vision of science. Such distortions in law’s understanding of the nature of science magnify the problems created when law tries to import structures from science to solve its problems.

Some would argue that problems at the intersection of law and science flow from the changing nature of science. Law is too slow to adapt to the changing information available through the advancements of science, particularly for issues that are dependent on the Supreme Court revisiting those issues. Delay in the legal system is certainly a problem when law and science interact. In my view, however, the deepest problems flow not from the changing nature of science but from the changing nature of law.

Law is by its nature evolutionary and adaptive. There are no ultimate doctrinal structures in law because there are no ultimate questions. Those wishing to escape the constraints of any doctrinal structure will seek out the open spaces, the interstices among those things that have been decided. Cases will naturally emerge within the spaces of whatever structure exists, rendering that structure insufficient for resolving the new question.

When we borrow structures from science, the adaptive process breaks down, and it does so for several reasons. The most obvious is that we do not understand the science we are importing or applying. As a result, we do not allow law to evolve in a very effective or nuanced fashion. More important, however, is our tendency to imagine that science is clear and certain. We forget that scientific lines and categories are themselves no more than constructs. They are ways of creating shared understandings within the scientific community. In a legal context, however, we easily lose sight of the artificiality and the assumptions that such constructs embody. We become fixated on scientific categorizations, as if lines drawn by science have some mysterious power that we can access by invoking them. As a result, we fail to engage in the natural evolution and adaptation of the resulting doctrines. In short, when the legal system relies on science to craft its rules, those rules lack the flexibility and dexterity necessary for effective participation in the evolution of legal doctrine.

With this in mind, the article begins by describing law’s vision of science as an enterprise that is reliable, sustainable, and true in some absolute sense. The article then contrasts that view with science’s vision of its own enterprise as something much more limited. In particular, it describes the turmoil that developed during the twentieth century over the definition of science and the uneasy truce that has emerged. Finally, the article explores the nature of law and suggests that the constantly evolving nature of law makes science a bad fit for the way we try to use it in the development of legal doctrines.

I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray.
In highly simplified form, what we think of as science today began its history deeply entwined with philosophy and theology. During the Scientific Revolution, science separated from other types of intellectual endeavor, although the lines of demarcation were never solid. In the mid-twentieth century, philosophers challenged the notion that science could be so neatly discrete, although they were unable to settle on a coherent definition. An uneasy truce developed in which science is, at best, defined as a cluster of concepts, albeit ones that do not work individually or even as a whole. For my purposes, the important point is the following: those things that make science what it is are a far cry from law’s vision of science. Such distortions in law’s understanding of the nature of science magnify the problems created when law tries to import structures from science to solve its problems.

Some would argue that problems at the intersection of law and science flow from the changing nature of science. Law is too slow to adapt to the changing information available through the advancements of science, particularly for issues that are dependent on the Supreme Court revisiting those issues. Delay in the legal system is certainly a problem when law and science interact. In my view, however, the deepest problems flow not from the changing nature of science but from the changing nature of law.

Law is by its nature evolutionary and adaptive. There are no ultimate doctrinal structures in law because there are no ultimate questions. Those wishing to escape the constraints of any doctrinal structure will seek out the open spaces, the interstices among those things that have been decided. Cases will naturally emerge within the spaces of whatever structure exists, rendering that structure insufficient for resolving the new question.

When we borrow structures from science, the adaptive process breaks down, and it does so for several reasons. The most obvious is that we do not understand the science we are importing or applying. As a result, we do not allow law to evolve in a very effective or nuanced fashion. More important, however, is our tendency to imagine that science is clear and certain. We forget that scientific lines and categories are themselves no more than constructs. They are ways of creating shared understandings within the scientific community. In a legal context, however, we easily lose sight of the artificiality and the assumptions that such constructs embody. We become fixated on scientific categorizations, as if lines drawn by science have some mysterious power that we can access by invoking them. As a result, we fail to engage in the natural evolution and adaptation of the resulting doctrines. In short, when the legal system relies on science to craft its rules, those rules lack the flexibility and dexterity necessary for effective participation in the evolution of legal doctrine.

With this in mind, the article begins by describing law’s vision of science as an enterprise that is reliable, sustainable, and true in some absolute sense. The article then contrasts that view with science’s vision of its own enterprise as something much more limited. In particular, it describes the turmoil that developed during the twentieth century over the definition of science and the uneasy truce that has emerged. Finally, the article explores the nature of law and suggests that the constantly evolving nature of law makes science a bad fit for the way we try to use it in the development of legal doctrines.

II. LIBEL IN PRINT AND BROADCAST MEDIA

A. History

Given the propensity for irreparable reputational harm when an individual is publicly maligned, the English courts began punishing defamatory statements as early as 1500. At first, the truth or falsity of such a statement was considered immaterial to a defamation action; however, by the mid-sixteenth century, some courts started to recognize a number of defenses to libel, truth among them:
As libel law matured, however, it lost its simplicity. Various defenses—justifications for punishing libels—sprang up. Truth was one. Privilege was another. Fair comment was a third. Even the publishers of untrue defamations, in some jurisdictions, were protected if they honestly believed the material they published to be true. In other jurisdictions, however, a publisher could be severely punished for publishing false libels, regardless of motives, regardless of the status of the person about whom the material was published.

The English common law tradition of libel was imported to the colonies and largely incorporated by the American judiciary, even after the passage of the First Amendment. However, contrary to the common law English tradition, the political climate of early nineteenth-century America entailed that political libel—speech affecting governmental, rather than private, reputation—frequently went unpunished. When it was penalized, it was generally via civil, rather than criminal, sanctions :
The early years of the republic clearly were accompanied by an acceptance of—and an eagerness for—political polemic, part of what some called the “politics of controversy.” Readers did not take libels literally. Unrestrained public debate was part of the price to be paid for liberty. And it was entertaining.

American libel law’s focus on compensating harm to private persons was well-tailored to suits arising from traditional media because their tightly constrained markets created the propensity for enormous and irreparable reputational damage. In the case of print media, that constraint was the product of relatively high production costs and a finite readership. This meant that only a very small number of magazines and an even smaller number of newspapers, in one geographical area or on one subject, could be sustained. In the case of radio and television, an additional constraint was the product of the limited broadcast spectrum, a structural restriction of no small importance for libel law. Even so, the restriction became increasingly irrelevant with the proliferation of cable and digital television and satellite television and radio. In whatever form, a small number of large, powerful conglomerates with exclusive access to publication technologies and their large and typically dispersed audiences have dominated traditional media markets because of those restrictions. Because such media have the power to substantially influence a large audience otherwise difficult to locate, they have the power to do irrevocable harm to individuals’ reputations, and those who suffer such injury have little recourse to self-help (see discussion, infra II(B)), even when the information used to defame them is untrue. As a result, in a traditional media framework, the courts decided that the compensation of actual damages was the best proxy for repairing the harm done by libelous speech.

B. Actual malice

The courts also recognized, however, that in attempting to curb damage to individuals’ reputations, they risked unwittingly shutting down constitutionally protected speech as well. Any punishment for libel had the propensity to have a chilling effect on speech because it might prompt publishers to avoid responsibility for the consequences of its publication by preemptively eliminate controversial material. Thus, in New York Times Co. v. Sullivan, the Court attempted to broker a peace between the First Amendment and contemporary libel law by instituting the “actual malice” standard—the requirement that, in order to be held liable in a defamation action brought by a public official, the publisher of a false and injurious statement must have published it with knowledge of or in reckless disregard of its falsity.

The Court premised its distinction between public officials and private individuals first on an access differential between the two types of plaintiffs. Because private individuals largely lacked the ability to directly rebut false and defamatory statements made about them, self-help could not be considered an appropriate remedy for such plaintiffs. By contrast, self-help was far more frequently a viable option for defamed public officials, because as persons in positions of relative power, they often had either direct access to the media or the persuasive power necessary to obtain such access. Furthermore, as the Court made clear in a subsequent case, the distinction between defamation of public and private individuals was further justified by public individuals’ willingness to engage in public disagreement, as evidenced and necessitated by their decision to enter civic life. By deciding to participate in public affairs, the Court reasoned, officials knowingly assumed the risk that they would be criticized brashly, and sometimes unfairly; as a result, they had less right to complain when they were maligned.

In addition to simply reducing the number of successful libel suits, the distinction between public and private figures addressed the problem of chilling effects in two ways: first, it made it difficult for plaintiffs to recover on the basis of politically motivated statements (those pertaining to official conduct), which meant that it would tend to lift publisher-imposed constraints on political speech. This change directly comported with the political expression principle of the First Amendment. Additionally, coupled with the simultaneous barring of punitive damages for public officials, it eliminated many of the most powerful potential plaintiffs—those with the potential to run roughshod over publishers by way of huge defamation suits—and thereby eliminated much of the fear of catastrophic loss that drove publishers to censor their own publications.

While the Court at first applied the actual malice standard only to public officials, it quickly extended it to “public figures,” those persons whose non-governmental positions of power rendered them practically indistinguishable from public officials with respect to their access to the media and, more importantly, the public’s legitimate interest in their affairs. Chief Justice Earl Warren explained the doctrinal expansion in his concurrence in Curtis Pub. Co. v. Butts:
[B]lending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. Viewed in this context, then, it is plain that although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely as a class these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

The Court thus extended the actual malice standard to general public figures—leaders of business and culture, as well as limited-purpose public figures—who operate as private figures, except in the context of a particular controversy in which they are voluntarily involved. In carefully calibrating the distinction between public and private in this way, the Court made clear that it was concerned not with singling out those who have traditionally been considered part of governmental processes, but also those who willingly involve themselves in media affairs in the same manner as do public officials.

[NOTE: Footnotes in this abstract were omitted. The full abstract with footnotes can be found in PDF form here]

However, Congress may not have adequately anticipated how badly people behave when they know no one is watching —a lapse in judgment that has grown increasingly conspicuous as internet users have become more sophisticated and successful in their efforts to avoid identification. While statistics on the phenomenon are unavailable, it is apparent that defamation in particular has begun to occur online with alarming frequency. However, there is reason to believe that we should be less concerned with digital libel than its print and broadcast analogs. This article will explore the critical differences between libel in traditional and digital media frameworks, and propose a scheme for the regulation of online defamation that can accommodate the internet’s unique structure.

Demand response energy infrastructure is a policy imperative. The federal Energy Policy Act of 2005 directs the Department of Energy to identify target levels of demand response benefits that can be achieved by January of 2007. The statute directs electric utilities to begin offering time-varying energy rates, and meters capable of supporting those rates, to consumers within 18 months of August 8, 2005. The Department of Energy is charged with educating consumers about the benefits of the systems; both state and federal agencies are charged with investigating the potential of, and making plans for, demand response adoption. It is expected that various demand response programs will be adopted throughout the country. Similar infrastructures are being put in place in other countries, some more advanced than in the U.S.

A core component of the demand response system is the collection of information about energy consumption from residential and commercial buildings at frequent intervals. The analog electric meters prevalent today are unsophisticated instruments that allow a meter reader to assess electricity use during the time interval between meter readings. The meters found in basements and on exterior walls, are typically read once a month by an employee of the utility who visits on foot.

Over the next two to five years these meters will be replaced by digital meters that collect data at frequent intervals, store it for many days, and transmit it wirelessly to the utility. Meters likely to be installed during 2006 are expected to contain a data collection module that will enable hourly readings and wireless transmittal of these readings to the utilities. Advanced metering installations projected to begin in 2007 will be capable of greater internal processing and have enhanced data storage capability. These meters are expected to collect data on electricity consumption at intervals ranging from one hour down to fifteen minutes. There is little agreement on how often meter readings will be sent to the utility or the intermediate nodes (concentrators) within the neighborhood, and the period for which readings will be retained in the meter, the nodes or the utility. The meters will collect and send a data set including a unique meter identifier, timestamp, usage data and some form of time synchronization information. The data is expected to be in a proprietary format unique to the individual manufacturer or utility, although some participants are looking forward to the availability of open standards and
architecture for meters.

Current utility practices include saving many years worth of customer usage data to facilitate customer dispute resolution as well as load and other research. These data retention practices are expected to persist. If all the readings are maintained, a customer’s yearly record will shift from a record of one data point per month reflecting average daily usage to a record of 750- 3000 distinct and time-stamped data points per month that reflect actual energy use. The information itself is distinct from the averages found in today’s bills. More significantly, the information one can glean or infer from this more accurate and detailed data set is radically different. Electricity consumption patterns in the coming DR system will reveal variations in power consumption that in turn can be associated with various household activities. Over time, power consumption can reveal personal sleep and work habits, the presence of certain medical equipment and other specialized devices, and of course signal the illegal behavior which today prompts law enforcement to seek them in certain drug production cases.

The changes in the frequency, format, contents, storage and transmission of data about electricity consumption that are integral to the planned demand response infrastructure raise interesting questions about the ongoing viability of maintaining, as a technical, practical and legal matter, the privacy of activities occurring within the home. How will the system architecture and business models address the increased sensitivity of meter readings? For example, imagine a future “wardriving” incident where wardrivers detect and monitor the unencrypted traffic between household meters and neighborhood level concentrators that relay energy usage information to the utilities. Monitoring such communications could provide information about occupancy on a per house, block, or neighborhood level. Armed with such information a criminal could relatively easily assess the best time to burglarize homes or engage in other property crimes in a neighborhood. How will the business models of utilities evolve to take advantage of the more detailed information that can be gleaned from energy consumption data taken at fifteen-minute intervals? Most significantly for the purposes of this paper, how will the increased information about in-home activities generated, transmitted and stored in DR systems be dealt with under the Fourth Amendment?

Existing legal precedent addressing the privacy of in-home activities, the energy they require, and the heat signatures they emit point in different directions. On the one hand the Supreme Court relatively recently affirmed the primacy of privacy in the home by prohibiting the use of a thermal imager to gather details about the home previously inaccessible without a physical trespass—at least until such time as the technology to do so becomes widely available to the general public. On the other hand, the Court has an entrenched position that where the government obtains personal details from third-party business records the Fourth Amendment is not implicated. In the first instance the Court has resisted limitations on Fourth Amendment protections for the home premised on the quality or quantity of the data that can be known. In contrast, the quality and quantity of the data in third party records clearly animates the existing Fourth Amendment case law finding no protection for personal details found in business records and has played a strong role in State Court decisions about the privacy protections provided by Fourth Amendment corollaries in state constitutions. While eschewing an examination of the
quality and quantity of information that devices reveal about the inside of the home, the Supreme Court has allowed the location of that information—in business records—to be completely determinative of the scope of Fourth Amendment protection.

Under the Court’s jurisprudence it is quite plausible that information about energy consumption inside the home contained in the records of a public utility—regardless of how sophisticated and detailed it becomes or how much it can reveal about the residents—will be found unprotected by the Fourth Amendment while the use of a relatively unsophisticated “device” that enhances law enforcement officers’ senses, allowing them to retrieve far less detailed information about in-home energy consumption, will require a warrant. At least until these devices become widely available to the public—as we would suggest they are today.

We are interested in exploring the Court’s divergent Fourth Amendment analyses when considering technological advancements that directly enhance the ability of law enforcement to gather information, and data collection and retention advancements in the private sector that similarly enhance the ability of law enforcement to gather information. In the leading case examining the law enforcement use of a thermal imager to gather information about the heat signatures of a home the Court refused to consider the privacy issues about the “waste heat” emanating from the home as driven by the notions of voluntarily disclosure, assumption of the risk, or abandonment. These concepts are the animating force behind the business records decisions. But as a logical matter these concepts are a far better fit for the “waste heat” which is freely available for anyone with the right technology to “see” from a public vantage point then they are for the utility records that are a necessary derivative of heating a home and are provided solely to the utility for the purpose of that service.

As more and more information about individuals’ activities is collected and archived by the private sector the Court’s disparate approach to considering the Fourth Amendment implications of direct collection of information by the government versus indirect collection from private sector entities (even where the data collection may be mandated by law) forces us to confront the possibility of a world with virtually no constitutional protection constraining government prying into citizen’s private acts whenever those acts are recorded or can be inferred from data collected in the private sector. If details of individuals’ in-home activities are directly recorded in or easily inferred from business records does the Fourth Amendment simply have nothing to say about the governments access and use of this information? Given that individuals are increasingly dependent on businesses to help them continually and in real-time manage activities and events in the home including the television they view, the nanny they hired, and the energy they use, will there be any private activities that remain outside the Fourth Amendment free-zone created by the business records case law? This article considers the Fourth Amendment issues raised by the changes in the quantity and quality of the data that soon will be routinely available in utility records in California and eventually across the nation. We begin our exploration of these questions in Part II by exploring the Court’s Fourth Amendment analysis of law enforcement use of technologies that directly enhance their senses. We compare and contrast this with the Supreme Court’s Fourth Amendment analysis and state courts’ analysis of comparable state constitutional privacy protections in the context of business records that yield information similar to that available through technological devices. We consider the Kyllo, Smith and Miller cases and state constitutional decisions considering
the privacy expectations in utility records. The comparisons highlight the inability of the Supreme Court’s current Fourth Amendment jurisprudence to provide a rational and satisfying description of the privacy interests the constitution protects in a world of networks, devices, and personal services that by design collect and retain personal information on private acts. They also illustrate the flimsy protection likely found in the Kyllo cases narrow limitation on “government-only” technology.

As the information in utility records becomes more detailed the Court’s disparate analysis of these two techniques for collecting information about activities taking place in the home leads to increasingly unsatisfying results from a normative perspective. The continued conclusion that personal information contained in third party business records is outside the Fourth Amendment is poised to obliterate the “firm line [the Fourth Amendment draws] at the entrance to the house.” We provide details of the DR architecture in Section III and explore the ramifications of the business records case law in this context in Section IV.

In Part V, we conclude that the economics of information processing are changing in a manner that is shifting the scope and effect of the Court’s business records doctrine. Technology that makes it cheaper and easier to collect and maintain information about customers, aligned with a service economy aimed at assisting individuals in managing their every need, activity and interaction, are diminishing the need for law enforcement to engage in the gumshoe surveillance activities of yesteryear or even the high-tech surveillance activities of yesterday. The private sector is subsidizing, at times displacing, the activities of law enforcement (and intelligence). The ability of law enforcement to cheaply and relatively easily access detailed profiles of individual household energy consumption or individual cell phone users’ locations, or access and combine billions of records from a multitude of private sector sources containing personal information as was planned in the Total Information Assessment project will make the Fourth Amendment less and less useful as a tool for prescribing limits on what the government can know and in what circumstances about its citizens.

The evolution of the DR architecture provides a particularly stark example of the capacity of the business records case law to erode the core of Fourth Amendment protections. The cultural dependence on private sector services that generate records containing personal information about activities occurring within the home are blurring the “firm line” around the home that the founders sought to protect. But it is just one example in a growing list. The Court’s disjointed approach to dataveillance and surveillance cannot sustain the privacy of the home as the framers’ or the current court envisioned it. By placing personal information contained in business records outside the scope of Fourth Amendment protection the Supreme Court has consigned us to a future without privacy.

Demand response energy infrastructure is a policy imperative. The federal Energy Policy Act of 2005 directs the Department of Energy to identify target levels of demand response benefits that can be achieved by January of 2007. The statute directs electric utilities to begin offering time-varying energy rates, and meters capable of supporting those rates, to consumers within 18 months of August 8, 2005. The Department of Energy is charged with educating consumers about the benefits of the systems; both state and federal agencies are charged with investigating the potential of, and making plans for, demand response adoption. It is expected that various demand response programs will be adopted throughout the country. Similar infrastructures are being put in place in other countries, some more advanced than in the U.S.

A core component of the demand response system is the collection of information about energy consumption from residential and commercial buildings at frequent intervals. The analog electric meters prevalent today are unsophisticated instruments that allow a meter reader to assess electricity use during the time interval between meter readings. The meters found in basements and on exterior walls, are typically read once a month by an employee of the utility who visits on foot.

Over the next two to five years these meters will be replaced by digital meters that collect data at frequent intervals, store it for many days, and transmit it wirelessly to the utility. Meters likely to be installed during 2006 are expected to contain a data collection module that will enable hourly readings and wireless transmittal of these readings to the utilities. Advanced metering installations projected to begin in 2007 will be capable of greater internal processing and have enhanced data storage capability. These meters are expected to collect data on electricity consumption at intervals ranging from one hour down to fifteen minutes. There is little agreement on how often meter readings will be sent to the utility or the intermediate nodes (concentrators) within the neighborhood, and the period for which readings will be retained in the meter, the nodes or the utility. The meters will collect and send a data set including a unique meter identifier, timestamp, usage data and some form of time synchronization information. The data is expected to be in a proprietary format unique to the individual manufacturer or utility, although some participants are looking forward to the availability of open standards and
architecture for meters.

Current utility practices include saving many years worth of customer usage data to facilitate customer dispute resolution as well as load and other research. These data retention practices are expected to persist. If all the readings are maintained, a customer’s yearly record will shift from a record of one data point per month reflecting average daily usage to a record of 750- 3000 distinct and time-stamped data points per month that reflect actual energy use. The information itself is distinct from the averages found in today’s bills. More significantly, the information one can glean or infer from this more accurate and detailed data set is radically different. Electricity consumption patterns in the coming DR system will reveal variations in power consumption that in turn can be associated with various household activities. Over time, power consumption can reveal personal sleep and work habits, the presence of certain medical equipment and other specialized devices, and of course signal the illegal behavior which today prompts law enforcement to seek them in certain drug production cases.

The changes in the frequency, format, contents, storage and transmission of data about electricity consumption that are integral to the planned demand response infrastructure raise interesting questions about the ongoing viability of maintaining, as a technical, practical and legal matter, the privacy of activities occurring within the home. How will the system architecture and business models address the increased sensitivity of meter readings? For example, imagine a future “wardriving” incident where wardrivers detect and monitor the unencrypted traffic between household meters and neighborhood level concentrators that relay energy usage information to the utilities. Monitoring such communications could provide information about occupancy on a per house, block, or neighborhood level. Armed with such information a criminal could relatively easily assess the best time to burglarize homes or engage in other property crimes in a neighborhood. How will the business models of utilities evolve to take advantage of the more detailed information that can be gleaned from energy consumption data taken at fifteen-minute intervals? Most significantly for the purposes of this paper, how will the increased information about in-home activities generated, transmitted and stored in DR systems be dealt with under the Fourth Amendment?

Existing legal precedent addressing the privacy of in-home activities, the energy they require, and the heat signatures they emit point in different directions. On the one hand the Supreme Court relatively recently affirmed the primacy of privacy in the home by prohibiting the use of a thermal imager to gather details about the home previously inaccessible without a physical trespass—at least until such time as the technology to do so becomes widely available to the general public. On the other hand, the Court has an entrenched position that where the government obtains personal details from third-party business records the Fourth Amendment is not implicated. In the first instance the Court has resisted limitations on Fourth Amendment protections for the home premised on the quality or quantity of the data that can be known. In contrast, the quality and quantity of the data in third party records clearly animates the existing Fourth Amendment case law finding no protection for personal details found in business records and has played a strong role in State Court decisions about the privacy protections provided by Fourth Amendment corollaries in state constitutions. While eschewing an examination of the
quality and quantity of information that devices reveal about the inside of the home, the Supreme Court has allowed the location of that information—in business records—to be completely determinative of the scope of Fourth Amendment protection.

Under the Court’s jurisprudence it is quite plausible that information about energy consumption inside the home contained in the records of a public utility—regardless of how sophisticated and detailed it becomes or how much it can reveal about the residents—will be found unprotected by the Fourth Amendment while the use of a relatively unsophisticated “device” that enhances law enforcement officers’ senses, allowing them to retrieve far less detailed information about in-home energy consumption, will require a warrant. At least until these devices become widely available to the public—as we would suggest they are today.

We are interested in exploring the Court’s divergent Fourth Amendment analyses when considering technological advancements that directly enhance the ability of law enforcement to gather information, and data collection and retention advancements in the private sector that similarly enhance the ability of law enforcement to gather information. In the leading case examining the law enforcement use of a thermal imager to gather information about the heat signatures of a home the Court refused to consider the privacy issues about the “waste heat” emanating from the home as driven by the notions of voluntarily disclosure, assumption of the risk, or abandonment. These concepts are the animating force behind the business records decisions. But as a logical matter these concepts are a far better fit for the “waste heat” which is freely available for anyone with the right technology to “see” from a public vantage point then they are for the utility records that are a necessary derivative of heating a home and are provided solely to the utility for the purpose of that service.

As more and more information about individuals’ activities is collected and archived by the private sector the Court’s disparate approach to considering the Fourth Amendment implications of direct collection of information by the government versus indirect collection from private sector entities (even where the data collection may be mandated by law) forces us to confront the possibility of a world with virtually no constitutional protection constraining government prying into citizen’s private acts whenever those acts are recorded or can be inferred from data collected in the private sector. If details of individuals’ in-home activities are directly recorded in or easily inferred from business records does the Fourth Amendment simply have nothing to say about the governments access and use of this information? Given that individuals are increasingly dependent on businesses to help them continually and in real-time manage activities and events in the home including the television they view, the nanny they hired, and the energy they use, will there be any private activities that remain outside the Fourth
Amendment free-zone created by the business records case law? This article considers the Fourth Amendment issues raised by the changes in the quantity and quality of the data that soon will be routinely available in utility records in California and eventually across the nation. We begin our exploration of these questions in Part II by exploring the Court’s Fourth Amendment analysis of law enforcement use of technologies that directly enhance their senses. We compare and contrast this with the Supreme Court’s Fourth Amendment analysis and state courts’ analysis of comparable state constitutional privacy protections in the context of business records that yield information similar to that available through technological devices. We consider the Kyllo, Smith and Miller cases and state constitutional decisions considering
the privacy expectations in utility records. The comparisons highlight the inability of the Supreme Court’s current Fourth Amendment jurisprudence to provide a rational and satisfying description of the privacy interests the constitution protects in a world of networks, devices, and personal services that by design collect and retain personal information on private acts. They also illustrate the flimsy protection likely found in the Kyllo cases narrow limitation on “government-only” technology.

As the information in utility records becomes more detailed the Court’s disparate analysis of these two techniques for collecting information about activities taking place in the home leads to increasingly unsatisfying results from a normative perspective. The continued conclusion that personal information contained in third party business records is outside the Fourth Amendment is poised to obliterate the “firm line [the Fourth Amendment draws] at the entrance to the house.” We provide details of the DR architecture in Section III and explore the ramifications of the business records case law in this context in Section IV.

In Part V, we conclude that the economics of information processing are changing in a manner that is shifting the scope and effect of the Court’s business records doctrine. Technology that makes it cheaper and easier to collect and maintain information about customers, aligned with a service economy aimed at assisting individuals in managing their every need, activity and interaction, are diminishing the need for law enforcement to engage in the gumshoe surveillance activities of yesteryear or even the high-tech surveillance activities of yesterday. The private sector is subsidizing, at times displacing, the activities of law enforcement (and intelligence). The ability of law enforcement to cheaply and relatively easily access detailed profiles of individual household energy consumption or individual cell phone users’ locations, or access and combine billions of records from a multitude of private sector sources containing personal information as was planned in the Total Information Assessment project will make the Fourth Amendment less and less useful as a tool for prescribing limits on what the government can know and in what circumstances about its citizens.

The evolution of the DR architecture provides a particularly stark example of the capacity of the business records case law to erode the core of Fourth Amendment protections. The cultural dependence on private sector services that generate records containing personal information about activities occurring within the home are blurring the “firm line” around the home that the founders sought to protect. But it is just one example in a growing list. The Court’s disjointed approach to dataveillance and surveillance cannot sustain the privacy of the home as the framers’ or the current court envisioned it. By placing personal information contained in business records outside the scope of Fourth Amendment protection the Supreme Court has consigned us to a future without privacy.

[NOTE: Footnotes in this abstract were omitted. The full abstract with footnotes can be found in PDF form here]

In this essay, Professor Ohm argues for a Twenty-First century definition of
Constitutionally-proscribed property deprivation. He argues that a Constitutionally
significant “Seizure” occurs whenever the State obtains the original or a copy of
personally-owned, non-public data. By copying the data, the State deprives the owner of
the property of the ability to delete or alter the State-possessed copy of the data. In
addition, modern Intellectual Property rules, and in particular Copyright, acknowledge
other harms caused by an unauthorized copy.

The Supreme Court has already opened the door to this definition, in Berger and Katz, by
holding in no uncertain terms that voice conversations are both searched and seized when
recorded by the police. Professor Ohm traces lower-court cases that came before and after
Berger and Katz and recognizes that most lower courts have ignored these Supreme
Court’s Seizure holdings.

Embracing a modern interpretation of the Seizure clause is consistent with the Framers’
intent, because copying affects the property rights of owners of intangible property in
many of the same ways that physical dispossession deprived property owners at the time
the Fourth Amendment was adopted.

Reconceiving the seizure clause in light of modern concerns about intangible property
rights helps solve many vexing Fourth Amendment puzzles that arise if the sole test is the
reasonable expectation of privacy. For example, does a bit-by-bit copy of a computer’s
hard drive implicate the Fourth Amendment, if the human operator does not “view” the
contents as they are copied? Could the government lawfully capture all of the
communications traversing a network without a warrant so long as they did not look at
the contents without a subsequent warrant? Do government-run network intrusion
detection systems implicate the Fourth Amendment?

Viewed as possible violations of the Search clause, these are frustrating, metaphysical
inquiries; if a bit falls in a packet sniffer, has it been searched? In contrast, under the new
definition of Seizure, these questions result in straightforward answers. In every one of
these situations, a seizure has occurred. The owner of the information has lost the ability
to delete, modify, secrete, or contextualize a copy of the information, even though he may
have retained his own copy. No less than when the police commandeer an automobile or
grab a box of records, the owner of the intangible property has lost dominion and control
over his property. A seizure has occurred, and the Fourth Amendment should proscribe
these acts absent warrant or exception.

Audio from Paul Ohm’s presentation of his paper at the 2007 STLR Symposium can be accessed here

Audio from Nicole Ozer’s presentation of his paper at the 2007 STLR Symposium can be accessed here

That approach not only misses the point of the Katz case, which established the
reasonable expectations of privacy test, but also dramatically under protects privacy, with
pernicious results. This paper articulates a first principles approach to constitutional
protection that focuses on the reasons electronic surveillance requires significant judicial
oversight. In particular, it argues that electronic surveillance that is intrusive, continuous,
indiscriminate, and hidden should be subject to the heightened procedural requirements
imposed on government wiretappers. Because much of modern online surveillance shares
those characteristics, it should be subject to the highest level of constitutional regulation.

Audio from Susan Freiwald’s presentation of her paper at the 2007 STLR Symposiusm can be accessed here