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Abstract:
This essay examines the French court order requiring Yahoo to prevent French Internet users from accessing images of Nazi memorabilia available on its American web site. The essay uses the French case to challenge the popular belief that an entirely borderless Internet favors democratic values. Professor Reidenberg starts from the premise that while the Internet enables actors to reach a geographically dispersed audience, the Internet should not change the accountability of those actors for their conduct within national borders. Professor Reidenberg shows that Yahoo's extensive business in France justifies the application of France's democratically chosen law and argues that the decision has important normative implications for pluralistic democracy on the global network. Namely, the decision promotes technical changes in the Internet architecture that empower democratic states to be able to enforce their freely chosen public policies within their territories. At the same time, the infrastructure changes will not enhance the ability of non-democratic states to pursue repressive policies within their territories in violation of international law. The essay shows the French decision as a maturing of the Internet regulatory framework and argues that the policy rules embedded in the technical infrastructure must recognize values adopted by different states and must not be dictated by technical elites.

Abstract:
This essay addresses the enforcement of decisions through Internet instruments. Traditionally, a state's enforcement power was bounded by territorial limits. However, for the online environment, the lack of local assets and the assistance of foreign courts no longer constrain state enforcement powers. States can enforce their decisions and policies through Internet instruments. Online mechanisms are available and can be developed for such pursuits. The starting point is a brief justification of Internet enforcement as the obligation of democratic states. Next, the essay describes the movement to re-engineer the Internet infrastructure by public and private actions and argues that the re-engineering facilitates state enforcement of legal and policy decisions. The essay maintains that states will increasingly try to use network intermediaries such as payment systems and Internet service providers as enforcement instruments. Finally and most importantly, the essay focuses on ways that states may harness the power of technological instruments such as worms, filters and packet interceptors to enforce decisions and sanction malfeasance.

Internet, enforcement, technology, law, jurisdiction, international law, liability

Abstract:
The current technology of the Internet creates ambiguity for sovereign territory because network boundaries intersect and transcend national borders. In this environment, jurisdiction over activities on the Internet has become a battleground for the struggle to establish the rule of law in the Information Society. This essay argues first that the initial wave of cases seeking to deny jurisdiction, choice of law and enforcement to states where users and victims are located constitutes a type of 'denial of service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex, gambling and stolen music use technologically based arguments to deny the applicability of rules of law interdicting their behavior. The essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. Innovation creates this counter-intuitive effect because more sophisticated computing enlists the processing capabilities and power of users' computers. This interactivity gives the victim's state a greater nexus with offending acts and provides a direct relationship with the offender for purposes of personal jurisdiction and choice of law. Some of these same innovations also enable states to enforce their decisions electronically and consequently bypass the problems of foreign recognition and enforcement of judgments. Finally, the essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.

Internet, jurisdiction, choice of law, technology, code, enforcement, borders, networks, conflict of laws

Abstract:
The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologist-defined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law. In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright's anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making. In essence, the technical community seeks to replace the state's decision on public intellectual property law with the community's own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.

intellectual property, copyright, open source, free software, internet, rule of law, digital economy, digital rights management, anti-circumvention, p2p, file sharing

Abstract:
The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies.

The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society.

This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important enforcers against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.

Privacy, data protection, remedies, fair information practices, civil rights, torts

Abstract:
The Platform for Privacy Preferences (P3P) is a W3C specification that provides a standard computer-readable language for web sites to encode their privacy policies. This standardization allows for the creation of web browsers and other user agents that can display privacy warnings and signals that are meaningful to users or that automate actions in accordance with user instructions. This paper shows that P3P user agents will necessarily include judgmental design decisions and that the accuracy of the P3P user agent interactions becomes a critical matter. The accuracy of P3P user agents raises significant legal concerns about privacy agreements, inadvertent deception, and liability. The technological mediation designed to make it easier for users to understand the privacy practices of web sites risks adding ambiguity, confusion and legal uncertainty. This paper argues that one way to avoid having privacy practices represented inaccurately by P3P user agents is to certify P3P user agents for the accuracy of their representations of web site P3P policies. While there are some things that P3P user agents might do that would be readily identified as inaccurate or misleading, there is a large gray area in which user agents might present factual information side-by-side with subjective judgments. These judgments may be deemed misleading by some people but not others. Many of the issues raised here are new, but this is not likely to be the last time that these issues arise. As work progresses on computer-mediated search and negotiation technologies with a wide variety of applications, these issues are likely to surface repeatedly. In this paper we explore these issues and suggest some possible solutions, as well as a number of open questions.

Internet, privacy, P3P, user agent, web site, code, standardization, contract, misrepresentation, deception, negligence

Abstract:
Following the No Child Left Behind mandate to improve school quality, there has been a growing trend among state departments of education to establish statewide longitudinal databases of personally identifiable information for all K-12 children within a state in order to track progress and change over time. This trend is accompanied by a movement to create uniform data collection systems so that each state’s student data systems are interoperable with one another. This study examines the privacy concerns implicated by these trends. The study reports on the results of a survey of all fifty states and finds that state educational databases across the country ignore key privacy protections for the nation's K-12 children. The study finds that large amounts of personally identifiable data and sensitive personal information about children are stored by the state departments of education in electronic warehouses or for the states by third party vendors. These data warehouses typically lack adequate privacy protections, such as clear access and use restrictions and data retention policies, are often not compliant with the Family Educational Rights and Privacy Act, and leave K-12 children unprotected from data misuse, improper data release, and data breaches. The study provides recommendations for best practices and legislative reform to address these privacy problems.

privacy, children, educational records, FERPA, NCLB, No Child Left Behind, longitudinal database

Abstract:
The study compares what systems are present in the United States and a number of advanced Asian countries to protect privacy and enhance trust in the realm of electronic communications. Additionally, the study reports on the effectiveness of these arrangements and the perceptions of various stakeholders of these different systems.

Privacy, Trust, Electronic Communications

Abstract:
The global information infrastructure poses a fundamental challenge to the conventional foundations of governance. This article argues that global networks structurally alter regulatory decisionmaking. National borders and sectoral boundaries lose an important degree of relevance while network borders and network communities gain prominence. The article shows that basic regulatory policymaking whether under the anti-statist American approach or the comprehensive European approach are ill-suited to the GII.Instead, Reidenberg argues for a new "network governance paradigm" that recognizes the complexity of regulatory power centers, utilizes new policy instruments such as technical standardization to achieve regulatory objectives, accord status to networks as semi-sovereign entities with "network federalism" to establish separation of power rules between physical and cyber jurisdiction, and shift the role of the state toward the creation of an incentive structure for network based rule-making.