Articles and Notes

Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of the Copyright Clause’s limits as free speech limits, giving them the force of an individual right.

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Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented. The cause of these problems, however, is less clear.

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.

Continue reading "Historic Perspectives on Law and Science" »

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Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates the prototypical “marketplace of ideas” than do warring politicos duking it out on the op-ed pages or, for that matter, in opposing briefs. However, the very features that make the internet fertile ground for cultural and political discourse—anonymity and pseudonymity; intellectual symbiosis and parasitism; fractal sprawl, audience dispersal and many-to-many architecture—render it a treacherous landscape for its custodians. In recognition of that fact, Congress in 1996 passed the Communications Decency Act, which nearly eliminated the liability that website administrators face for third-party generated content.

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A Regulatory Proposal for Digital Defamation:
Conditioning §230 Safe Harbor on the Provision of a Site "Rating"" »

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In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs. Armed with information about the time-varying cost of electricity residential and commercial customers are expected to reduce energy usage and/or shift their usage to non-peak, less costly, hours. Such shifts, even absent reductions in overall consumption, will reduce the likelihood of energy brown and black outs and provide direct savings to consumers. Technologies to enable the demand response system, including advanced metering research and development [OpenAMI] and sensor and control technologies development [DRETD], are under development. These technologies will be coupled with a communication and network infrastructure that supports the multicast of real-time pricing information, and the aggregation of energy usage and billing information.

Continue reading "Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home" »

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The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its
counterpart, the Search clause, has evolved through a steady progression of Supreme
Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based
notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to
modern privacy concerns by extending Constitutional protection to situations that satisfy
the reasonable expectation of privacy test. While imperfect, the evolved Search clause
has kept the protections of the Fourth Amendment relevant in an age of digital evidence,
ubiquitous communication networks, and increasingly sophisticated and invasive
surveillance capabilities.

Continue reading "The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property" »

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The ACLU of Northern California has been a leader in generating public and legislative
attention to the privacy, personal safety, and financial security risks associated with the
use of Radio Frequency Identification (RFID) technology in government-issued
identification documents, such as drivers' licenses and student ID cards.

Continue reading "Rights Chipped Away: RFID and Identification Documents" »

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Under current Fourth Amendment doctrine, parties to a communication enjoy
constitutional protection against government surveillance only when they have a
reasonable expectation of privacy in those communications. This paper discusses the
insufficiency of the reasonable expectation of privacy test in the context of modern
communications. Significantly, courts have required that communications media be
virtually invulnerable before affording them Fourth Amendment protection.

Continue reading "First Principles of Communications Privacy" »

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