From the abstract:
Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of Big Data, data mining, ubiquitous consumer tracking, and digital forensics to prevent wrongful convictions and to provide hard proof of actual innocence for those already convicted.
Download the full article here.
Washington and Lee law professor Josh Fairfield was a speaker at this year’s Digital Asset Transfer Authority annual conference in April. During the conference, Prof. Fairfield spoke on a panel addressing consumer protection and privacy along with Garrett Graff, Editor, The Washingtonian; Beriz Szoka, Founder and President, TechFreedom; Jody Westby, CEO Global Cyber Risk LLC; and Christina Tetreault, Staff Attorney at Consumers Union. A video of the presentation is available below:
On Dec. 4, Washington and Lee law professor Josh Fairfield will present during a plenary session at the Minnesota Annual Judicial Conference. The title of his talk is “We the People in a Virtual World.” Below is the abstract for the talk:
What if The Matrix were real? Through virtual world technology, users experience persistent and interactive computerized three dimensional worlds populated by many other people, all while sitting at their computer, or even as they walk or drive around. There is a lot of money at stake in this technology. Millions of citizens spend thousands of hours and billions of dollars in virtual worlds, for digital objects, or to buy digital currency. Virtual worlds, social networks, and augmented reality enable people to live out their economic, social and political lives in new online communities. Because citizens care deeply about their property, personhood, and community, they will bring claims of harm or disputes needing resolution to courts.
In the common law system, state courts see technology cases first. The common law often is technology law. New cases are often cases of first impression because of new technology. Virtual world technology has brought multi-million-member communities together online and supported a multi-billion dollar economy, but it has also afforded new opportunities for fraud, crime, or disputes over property. Claims of theft of virtual property, fraud through Ponzi schemes based on virtual currency, and questions who inherits virtual property or social network accounts either have or will soon come before courts.
This presentation will touch on core common law areas, and show how they are likely to be affected by the rise of virtual worlds, social networks, virtual currency, and wearable computing. The presentation will begin with an introduction to virtual world technology, continue with a description of the present and near-future cases that courts have or will soon engage, and conclude with a further-future look at the future of crypto-currencies. Finally, the developments of the past year make it clear that virtualization technologies will not merely remain in virtual worlds, but increasingly impact everyday life. Virtual currencies let drug dealers sell real drugs. Wearable computing like Google’s Glass take virtual worlds out of the desktop computer and overlay it on top of the real world. This look into the further future will also engage mixed and augmented reality technologies: computer technologies that bring these virtual experiences into the real world.
On Oct. 26, Washington and Lee law professor Josh Fairfield presents his paper on social media privacy at the Conference on Empirical Legal Studies (CELS) at the University of Pennsylvania Law School. Prof. Fairfield coauthored the paper with Christoph Engel of the Max Planck Institute.
Now in its eighth year, CELS features original empirical legal scholarship by leading scholars from a diverse range of fields. The conference is very selective in terms of the presentations and includes commentary from top scholars on each paper.
Fairfield’s paper is titled “Big Brother is Watching You Because Little Brother has Opened the Door: An Experiment on Information Sharing in Social Networks.” The paper studies the problems people have protecting their privacy over social networks. Fairfield and Engel observe that legal policy characterizes privacy as a private problem that each person needs to protect for themselves. But they argue that in reality privacy is a social construct: you do not need it on a desert island.
Consequently, the authors study data pollution as a public bad–a pool to which we all contribute information about each other. In the wake of the Snowden revelations about the Prism program, in which Americans’ social network data was provided to intelligence agencies on a massive scale, the authors believe it is more important than ever to understand how privacy is everyone’s problem.
For more information about CELS, visit the conference website.
Washington and Lee law professor Josh Fairfield has published an article in the Northwestern Journal of Technology and Intellectual Property titled “Do-Not-Track as Default.” The article covers this developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. From the abstract:
Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature.
The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This “bespoke” standard follows in a long line of privacy preference controls that have been neutered by increased transaction costs.
This article argues that privacy controls must be firmly in consumers’ hands, and must be automated and integrated to be effective. If corporations can deprive consumers of privacy through automated End User License Agreements or Terms of Service, while consumers are constrained to set their privacy preferences by hand, consumers cannot win. Worse, the TPE bespoke standard is anticompetitive. Already, browsers like Microsoft’s Internet Explorer 10 (IE10) will launch with default Do-Not-Track enabled. But the TPE bespoke standard offers advertisers a free pass to ignore the Do-Not-Track flags that will be set by IE10 and prohibits other browsers from offering automatic, integrated, and therefore useable privacy features.
The article is available for download from the Journal’s website.
Professor Joshua Fairfield to Present His Work at Stanford-Peking University Conference on Internet Law and Policy
Washington and Lee law professor Joshua Fairfield will present his work on virtual currency and virtual property, as part of a panel discussing Virtual Items, at the Second Stanford-Peking University Conference on Internet Law and Policy 2013 hosted by Stanford Law School on May 3d and 4th (registration link: http://blogs.law.stanford.edu/ilpp2013/).
The conference is co-sponsored by Stanford Law School and Peking University, and draws together internationally-recognized scholars from the United States, China, and across the world. The conference addresses issues of cutting edge intellectual property and e-commercial law, including the growing trade in virtual items and currency.
Professor Fairfield’s work, entitled “Virtual Gravity,” will address the emergence of virtual items, virtual currencies, and microtransactions as a major means of financing internet services. For example, the virtual currency BitCoin has recently risen to prominence as parties seeking to shield money from the Cypriot banking crisis invest in the online money. Professor Fairfield’s research explores the differences between Europe, the United States, and China in addressing the rise of virtual items. It also explores the gravitational pull that the technology of digital objects exerts on the form and shape of the law.
Several new papers by W&L faculty are available for download from SSRN, including articles by professors Benjamin Spencer, Christopher Seaman, Christopher Bruner and Joshua Fairfield. Titles and abstracts are below:
Avatar Experimentation: Human Subjects Research in Virtual Worlds
Tue, 07 Aug 2012 | Joshua A.T. Fairfield
Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds and the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This Article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles. Although hundreds of articles and studies examine virtual worlds, none have addressed the interplay between the law and best practices of human subjects research in those worlds. This Article fills that gap. Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. This Article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputations.
Conceptions of Corporate Purpose in Post-Crisis Financial Firms
Wed, 01 Aug 2012 | Christopher M. Bruner
American “populism” has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose – the aims toward which society expects corporate decision-making to be directed. This essay assesses the impact of American populism upon prevailing conceptions of corporate purpose – contrasting its unique expression in the context of financial firms with that arising in other contexts – and then examines its impact upon corporate governance reforms enacted in the wake of the financial and economic crisis that emerged in 2007. I first explore how populism has historically shaped conceptions of corporate purpose in the United States. While the “employee” conceptual category best encapsulates the perceived interests of average working people in the non-financial context, the “depositor” conceptual category best encapsulates their perceived interests in the financial context. Accordingly, American populism has long fostered strong emphasis on the interests of bank depositors, resulting in striking corporate architectural strategies aimed at reducing risk-taking to ensure firm sustainability – notably, imposing heightened fiduciary duties on directors and personal liability on shareholders. I then turn to the crisis, arguing that growing shareholder-centrism over recent decades goes a long way toward explaining excessive risk-taking in financial firms – a conclusion rendering post-crisis reforms aimed at further strengthening shareholders a surprising and alarming development. While populism has remained a powerful political force, it has expressed itself differently in this new environment, fueling a crisis narrative and corresponding corporate governance reforms that not only fail to acknowledge the role of equity market pressures toward excessive risk-taking in financial firms, but that effectively reinforce such pressures moving forward. I conclude that potential corporate governance reforms most worthy of consideration include those aimed at accomplishing precisely the opposite, which may require resurrecting corporate architectural strategies embraced in the past to reduce risk-taking in financial firms. As a threshold matter, however, we must first grapple effectively with a more fundamental and pressing social and political problem – the popular misconception that financial firms exist merely to maximize stock price for the short-term benefit of their shareholders.
Best Mode Trade Secrets
Fri, 27 Jul 2012 | Christopher B. Seaman
Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her patent the preferred method for carrying out the invention — the so-called “best mode” — will no longer invalidate her patent rights or otherwise render them unenforceable. In this Essay, we explain why it may become routine post-patent reform for patentees to attempt to assert both patent rights and trade secret rights for preferred embodiments of their invention in certain types of cases. We also consider potentially undesirable ramifications of this change and suggest one approach courts may use to limit claims of concurrent trade secret and patent protection when equity demands.
Class Actions, Heightened Commonality, and Declining Access to Justice
Fri, 20 Jul 2012 | A. Benjamin Spencer
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.