Bystanderism is becoming largely digital. If being subjected to perilous situations was once rese... more Bystanderism is becoming largely digital. If being subjected to perilous situations was once reserved almost solely for the physical world, individuals now might witness those in peril digitally from afar via online livestreams. New technological developments in the field of artificial intelligence (AI) might also expand bystanderism to new fields, whereby machines—not just humans—are gradually positioned to better compute their surroundings, thus potentially being capable of reaching a high statistical probability that a perilous situation is currently taking place in their vicinity. This current and future expansion of bystanderism into the digital world forms a rather new type of digital bystander that might challenge the legal and social meaning of bad Samaritan laws—legal duties to act on the behalf of others in a perilous situation by reporting the events or aiding those in the perilous situation, when the burden or risk of such aid is low. With the rise in the availability of livestreaming crimes on social media platforms, and the rise in AI capabilities, the current legal framework that governs bad Samaritans might become inappropriate in regulating social behavior and personal safety, which in turn might shift to the almost sole prerogative of platform governance—transforming online users and platforms into becoming the new digital Samaritans.
Recently, toys have become more interactive than ever before. The emergence of the Internet of Th... more Recently, toys have become more interactive than ever before. The emergence of the Internet of Things (IoT) makes toys smarter and more communicative: they can now interact with children by "listening" to them and respond accordingly. While there is little doubt that these toys can be highly entertaining for children and even possess social and educational benefits, the Internet of Toys (IoToys) raises many concerns. Beyond the fact that IoToys that might be hacked or simply misused by unauthorized parties, datafication of children by toy conglomerates, various interested parties and perhaps even their parents could be highly troubling. It could profoundly threaten children's right to privacy as it subjects and normalizes them to ubiquitous surveillance and datafication of their personal information, requests, and any other information they divulge. While American policymakers acknowledged the importance of protecting children's privacy online back in 1998, when crafting COPPA, this regulatory framework might become obsolete in face of the new privacy risks that arise from IoToys. Do fundamental differences between websites and IoToys necessitate a different legal framework to protect children's privacy? Should policymakers recalibrate the current legal framework to adequately protect the privacy of children who have IoToys? Finally, what are the consequences for children's privacy of ubiquitous parental surveillance through IoToys — allegedly granted to safeguard children from online risks? And how might children's privacy be better framed and protected in this context?
This Article focuses on the privacy concerns that IoToys raise. Part I briefly outlines the evolution of IoToys while examining their capacity to collect and retain data. Then, in reference to the legal framework chosen to protect children from online datafication twenty years ago, the next part discusses the American perception of children's privacy, focusing on COPPA. Through this analysis, this part will show how key market players currently comply with COPPA regulation, and evaluate whether such compliance is relevant to IoToys' dangers and challenges. Part III revisits COPPA, challenges it, and in calling for its recalibration offers some practical solutions to IoToys' privacy threats. Thereafter Part IV normatively evaluates children's conception of privacy and argues that IoToys' monitoring practices could jeopardize the parent-child relationship and calls for recalibrating children's privacy in the digital era. The final part summarizes the discussion and concludes that children's privacy matters today perhaps more than ever before, and that the potential movement toward a ubiquitous surveillance era should not lead to its demise.
The digital era invoked new challenges to judicial systems. The Internet enabled violation of pri... more The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights, and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, and along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime of copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by grating rights of erasure or delisting of personal data about EU individuals under certain circumstances. Effectively, the EU placed search engines — and currently mainly Google — as a judiciary, tasked to balance between different fundamental human rights. This judiciary privatization represents a new paradigm in legal systems and possesses vast global ramifications which must be further scrutinized.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, c... more Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet. The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used. These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement. Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged. Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.
This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.
Nations and their citizens rely on infrastructures. Their incapacitation or destruction could pre... more Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in a handful of sectors. Over the past few years, several novel laws and regulations addressing this emerging issue have been legislated. Yet, the overall trajectory of limited regulatory intervention has not changed. With that, the wisdom of such a limited regulatory framework must be revisited and possibly reconsidered. This Article fills an important gap in the legal literature by contributing to and promoting this debate on cyber-risk regulation of CIs, while mapping out the relevant rights, options, and interests this ‘critical’ debate entails and setting forth a regulatory blueprint that balances the relevant factors and considerations.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
The digital era invoked new challenges to judicial systems. The Internet enabled violation of pri... more The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights, and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, and along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime of copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by grating rights of erasure or delisting of personal data about EU individuals under certain circumstances. Effectively, the EU placed search engines—and currently mainly Google—as a judiciary, tasked to balance between different fundamental human rights. This judiciary privatization represents a new paradigm in legal systems and possesses vast global ramifications which must be further scrutinized. This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
Inflation and deflation change the value of money. Policymakers have used this rationale to amend... more Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and subsequently, could affect "the value" of nonmonetary sanctions—chiefly imprisonment and capital punishments. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishments, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the U.S. has generally increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. In the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognize life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the U.S. since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to much extent, supports life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, the Article examines consequences of failing to apply life expectancy considerations in practice, and proposes modest solutions to overcome this perceived problem.
Public and private actors engage in cyber warfare. In the private field, the role of individuals ... more Public and private actors engage in cyber warfare. In the private field, the role of individuals is rather limited: Individuals are usually either hackers or targets of cyber crimes. This paradigm could change soon, as individuals might now face a new threat: Information. In 2014, a group of hackers launched a cyber attack on Sony Pictures Entertainment, and released, inter alia, personally identifiable information on their employees, including email correspondence and information about executive salaries. This incident revealed a terrifying new reality: Cyber attacks could result in a revelation of our entire personal information held by third parties. Emails, search queries, credit card numbers, purchase history, and anything we do online could be posted for everyone to search and view. How does the U.S. legal system cope with this new information threat? Not well. Current legal measures are insufficient to deal with such new threats. Even if the target can recover monetary damages, legal remedies do not offer removal of most online information. Thus, legal intervention is required.
This Essay scrutinizes the new threats to civilians in cyber warfare, emerging mostly from other civilians, and proposes a modest solution to the new informational threat. It examines the two traditional roles civilians play in the digital battlefield, both as attackers and as potential targets. Then, it describes the new threat of cyber warfare to civilians: Dissemination of personal information online. After analyzing the current legal measures available for civilians, and proving their insufficiency, the Essay discusses the need for a forgetful Internet by introducing and analyzing the EU’s right to be forgotten. It argues that a right to be forgotten is a dangerous tool that would lead to Internet censorship and therefore proposes a different legal-technological solution that could aid civilians in better coping with the new threat. Without such mechanism, we might be at risk of a digital civil war in cyberspace.
Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 1... more Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 19th century, there has been a substantial increase in criminal copyright legislation. Copyright criminalization could possibly lead to a paradigm shift towards a criminal-oriented law. However, legislation alone is insufficient to change the perception of copyright as a criminal-oriented law, as it also depends on practice. Thus, if enforcement is sporadic and relatively low, an increase of criminal legislation in copyright law does not mark a paradigmatical change towards a criminal copyright perception. Analyzing statistical data regarding criminal copyright prosecutions reveals that criminal prosecutions are still relatively rare. Although the massive increase of criminal copyright legislation should have led to a higher scale of enforcement, the current reality is that criminal prosecutions are scant, leading to a criminal copyright gap between legislation and enforcement.
This Article introduces the criminal copyright gap. I review the legislative history of copyright criminalization since its birth in 1897, while dividing the process into two separate phases: The Low-Tech Phase that took place in the end of the 19th century; and the High-Tech Phase, which is further divided into two sub-phases: an analog phase, which occurred in the beginning of the 1970s and lasted until 1992, and a digital phase, which occurred in the beginning of 1992 and still lasts. Then, I examine the practical aspects of copyright criminalization by analyzing statistical data on criminal copyright filings. I argue that statistical data reveals that the on-going legislative process of copyright criminalization is not applied in practice, and thus search for the possible explanations of this criminal copyright gap. I opine that the criminal copyright gap leads to the conclusion that currently criminal copyright is not undergoing a paradigm shift. Finally, I conclude that although copyright law is not yet criminal-oriented, a paradigmatical shift towards a criminal copyright regime could occur in the near future, if enforcement of copyright infringements will become more substantial.
Copyright law does not explicitly impose content-restrictions on the copyrightability of works. A... more Copyright law does not explicitly impose content-restrictions on the copyrightability of works. As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable. The work could also be highly profitable for their makers. Along with possible revenues, an author of an illegal work can possibly redeem losses caused by infringement even though society does not necessarily benefit, and might even be harmed, by that work. This scheme does no benefit society and should be resolved.
This Article examines the current and desired copyright protection of illegal works. I review elements of copyrightability while addressing content-restrictions in copyright, comparing them to other IP laws. After evaluating whether copyright law should impose content-restrictions on illegal works, and whether such impositions would be constitutional, I conclude that certain works that are linked to criminal activities and cause harm should not grant the felon profits. I, thus, propose a new framework of illegal copyright that de-incentives the creation of undesired works by eliminating profitability from copyrighted materials related to the crime and by reducing increased profitability from other works related to the felon, while compensating victims.
The Internet threatens many right holders who consistently battle
against technologies that enab... more The Internet threatens many right holders who consistently battle
against technologies that enable people to use their copyrighted
materials without their consent. While copyright holders have
succeeded in some cases, their main battle against peer-to-peer (P2P)
file-sharing has yet to be resolved. Another technology that threatens
right holders’ business models, especially in the film industry, is the
distribution of their content freely via webcasting. Although right
holders have paid little attention to webcasting as they continue their
campaign against P2P file-sharing, it poses similar threats and
presents the likely possibility of a future copyright battle.
This Article examines copyright and webcasting. I analyze
webcasting in comparison to past and current wars on copyright,
trying to unveil major differences between the two. I argue that the
current U.S. copyright régime treats webcasting inadequately and
should be reexamined, especially vis-à-vis end-user’s actions since
courts have yet to review cache copies created during Internet
transmissions. I opine that future legal solutions proposed to handle
webcasting, much like past attempts in similar matters, will be futile
since technology will continue to evolve at a faster rate than
legislation. Finally, I argue that the best solution to the current, as
well as future, legal battles to protect copyrights should be the
creation of a new business model similar to that of a levy system.
Harvard Journal of Sports & Entertainment Law, Jan 1, 2011
Internet file-sharing of copyrighted materials created a struggle between right holders, Internet... more Internet file-sharing of copyrighted materials created a struggle between right holders, Internet Service Providers (ISPs), and file-sharers. After several different attempts to resolve the struggle, many countries began to debate the possibility of a Three Strikes Policy (3SP), which includes, inter alia, providing for the termination of subscriptions and accounts of repeat infringers in appropriate circumstances. This policy has thus far been implemented by way of legislation in Taiwan (2009), South Korea (2009), France (2010), the United Kingdom (2010) and New Zealand (2011), and by means of private ordering in Ireland (2010). It is still under consideration elsewhere. The 3SP is portrayed as a panacea for Internet-related infringements.
This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users' Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders' power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.
Bystanderism is becoming largely digital. If being subjected to perilous situations was once rese... more Bystanderism is becoming largely digital. If being subjected to perilous situations was once reserved almost solely for the physical world, individuals now might witness those in peril digitally from afar via online livestreams. New technological developments in the field of artificial intelligence (AI) might also expand bystanderism to new fields, whereby machines—not just humans—are gradually positioned to better compute their surroundings, thus potentially being capable of reaching a high statistical probability that a perilous situation is currently taking place in their vicinity. This current and future expansion of bystanderism into the digital world forms a rather new type of digital bystander that might challenge the legal and social meaning of bad Samaritan laws—legal duties to act on the behalf of others in a perilous situation by reporting the events or aiding those in the perilous situation, when the burden or risk of such aid is low. With the rise in the availability of livestreaming crimes on social media platforms, and the rise in AI capabilities, the current legal framework that governs bad Samaritans might become inappropriate in regulating social behavior and personal safety, which in turn might shift to the almost sole prerogative of platform governance—transforming online users and platforms into becoming the new digital Samaritans.
Recently, toys have become more interactive than ever before. The emergence of the Internet of Th... more Recently, toys have become more interactive than ever before. The emergence of the Internet of Things (IoT) makes toys smarter and more communicative: they can now interact with children by "listening" to them and respond accordingly. While there is little doubt that these toys can be highly entertaining for children and even possess social and educational benefits, the Internet of Toys (IoToys) raises many concerns. Beyond the fact that IoToys that might be hacked or simply misused by unauthorized parties, datafication of children by toy conglomerates, various interested parties and perhaps even their parents could be highly troubling. It could profoundly threaten children's right to privacy as it subjects and normalizes them to ubiquitous surveillance and datafication of their personal information, requests, and any other information they divulge. While American policymakers acknowledged the importance of protecting children's privacy online back in 1998, when crafting COPPA, this regulatory framework might become obsolete in face of the new privacy risks that arise from IoToys. Do fundamental differences between websites and IoToys necessitate a different legal framework to protect children's privacy? Should policymakers recalibrate the current legal framework to adequately protect the privacy of children who have IoToys? Finally, what are the consequences for children's privacy of ubiquitous parental surveillance through IoToys — allegedly granted to safeguard children from online risks? And how might children's privacy be better framed and protected in this context?
This Article focuses on the privacy concerns that IoToys raise. Part I briefly outlines the evolution of IoToys while examining their capacity to collect and retain data. Then, in reference to the legal framework chosen to protect children from online datafication twenty years ago, the next part discusses the American perception of children's privacy, focusing on COPPA. Through this analysis, this part will show how key market players currently comply with COPPA regulation, and evaluate whether such compliance is relevant to IoToys' dangers and challenges. Part III revisits COPPA, challenges it, and in calling for its recalibration offers some practical solutions to IoToys' privacy threats. Thereafter Part IV normatively evaluates children's conception of privacy and argues that IoToys' monitoring practices could jeopardize the parent-child relationship and calls for recalibrating children's privacy in the digital era. The final part summarizes the discussion and concludes that children's privacy matters today perhaps more than ever before, and that the potential movement toward a ubiquitous surveillance era should not lead to its demise.
The digital era invoked new challenges to judicial systems. The Internet enabled violation of pri... more The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights, and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, and along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime of copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by grating rights of erasure or delisting of personal data about EU individuals under certain circumstances. Effectively, the EU placed search engines — and currently mainly Google — as a judiciary, tasked to balance between different fundamental human rights. This judiciary privatization represents a new paradigm in legal systems and possesses vast global ramifications which must be further scrutinized.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, c... more Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet. The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used. These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement. Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged. Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.
This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.
Nations and their citizens rely on infrastructures. Their incapacitation or destruction could pre... more Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in a handful of sectors. Over the past few years, several novel laws and regulations addressing this emerging issue have been legislated. Yet, the overall trajectory of limited regulatory intervention has not changed. With that, the wisdom of such a limited regulatory framework must be revisited and possibly reconsidered. This Article fills an important gap in the legal literature by contributing to and promoting this debate on cyber-risk regulation of CIs, while mapping out the relevant rights, options, and interests this ‘critical’ debate entails and setting forth a regulatory blueprint that balances the relevant factors and considerations.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
The digital era invoked new challenges to judicial systems. The Internet enabled violation of pri... more The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights, and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, and along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime of copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by grating rights of erasure or delisting of personal data about EU individuals under certain circumstances. Effectively, the EU placed search engines—and currently mainly Google—as a judiciary, tasked to balance between different fundamental human rights. This judiciary privatization represents a new paradigm in legal systems and possesses vast global ramifications which must be further scrutinized. This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
Inflation and deflation change the value of money. Policymakers have used this rationale to amend... more Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and subsequently, could affect "the value" of nonmonetary sanctions—chiefly imprisonment and capital punishments. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishments, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the U.S. has generally increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. In the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognize life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the U.S. since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to much extent, supports life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, the Article examines consequences of failing to apply life expectancy considerations in practice, and proposes modest solutions to overcome this perceived problem.
Public and private actors engage in cyber warfare. In the private field, the role of individuals ... more Public and private actors engage in cyber warfare. In the private field, the role of individuals is rather limited: Individuals are usually either hackers or targets of cyber crimes. This paradigm could change soon, as individuals might now face a new threat: Information. In 2014, a group of hackers launched a cyber attack on Sony Pictures Entertainment, and released, inter alia, personally identifiable information on their employees, including email correspondence and information about executive salaries. This incident revealed a terrifying new reality: Cyber attacks could result in a revelation of our entire personal information held by third parties. Emails, search queries, credit card numbers, purchase history, and anything we do online could be posted for everyone to search and view. How does the U.S. legal system cope with this new information threat? Not well. Current legal measures are insufficient to deal with such new threats. Even if the target can recover monetary damages, legal remedies do not offer removal of most online information. Thus, legal intervention is required.
This Essay scrutinizes the new threats to civilians in cyber warfare, emerging mostly from other civilians, and proposes a modest solution to the new informational threat. It examines the two traditional roles civilians play in the digital battlefield, both as attackers and as potential targets. Then, it describes the new threat of cyber warfare to civilians: Dissemination of personal information online. After analyzing the current legal measures available for civilians, and proving their insufficiency, the Essay discusses the need for a forgetful Internet by introducing and analyzing the EU’s right to be forgotten. It argues that a right to be forgotten is a dangerous tool that would lead to Internet censorship and therefore proposes a different legal-technological solution that could aid civilians in better coping with the new threat. Without such mechanism, we might be at risk of a digital civil war in cyberspace.
Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 1... more Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 19th century, there has been a substantial increase in criminal copyright legislation. Copyright criminalization could possibly lead to a paradigm shift towards a criminal-oriented law. However, legislation alone is insufficient to change the perception of copyright as a criminal-oriented law, as it also depends on practice. Thus, if enforcement is sporadic and relatively low, an increase of criminal legislation in copyright law does not mark a paradigmatical change towards a criminal copyright perception. Analyzing statistical data regarding criminal copyright prosecutions reveals that criminal prosecutions are still relatively rare. Although the massive increase of criminal copyright legislation should have led to a higher scale of enforcement, the current reality is that criminal prosecutions are scant, leading to a criminal copyright gap between legislation and enforcement.
This Article introduces the criminal copyright gap. I review the legislative history of copyright criminalization since its birth in 1897, while dividing the process into two separate phases: The Low-Tech Phase that took place in the end of the 19th century; and the High-Tech Phase, which is further divided into two sub-phases: an analog phase, which occurred in the beginning of the 1970s and lasted until 1992, and a digital phase, which occurred in the beginning of 1992 and still lasts. Then, I examine the practical aspects of copyright criminalization by analyzing statistical data on criminal copyright filings. I argue that statistical data reveals that the on-going legislative process of copyright criminalization is not applied in practice, and thus search for the possible explanations of this criminal copyright gap. I opine that the criminal copyright gap leads to the conclusion that currently criminal copyright is not undergoing a paradigm shift. Finally, I conclude that although copyright law is not yet criminal-oriented, a paradigmatical shift towards a criminal copyright regime could occur in the near future, if enforcement of copyright infringements will become more substantial.
Copyright law does not explicitly impose content-restrictions on the copyrightability of works. A... more Copyright law does not explicitly impose content-restrictions on the copyrightability of works. As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable. The work could also be highly profitable for their makers. Along with possible revenues, an author of an illegal work can possibly redeem losses caused by infringement even though society does not necessarily benefit, and might even be harmed, by that work. This scheme does no benefit society and should be resolved.
This Article examines the current and desired copyright protection of illegal works. I review elements of copyrightability while addressing content-restrictions in copyright, comparing them to other IP laws. After evaluating whether copyright law should impose content-restrictions on illegal works, and whether such impositions would be constitutional, I conclude that certain works that are linked to criminal activities and cause harm should not grant the felon profits. I, thus, propose a new framework of illegal copyright that de-incentives the creation of undesired works by eliminating profitability from copyrighted materials related to the crime and by reducing increased profitability from other works related to the felon, while compensating victims.
The Internet threatens many right holders who consistently battle
against technologies that enab... more The Internet threatens many right holders who consistently battle
against technologies that enable people to use their copyrighted
materials without their consent. While copyright holders have
succeeded in some cases, their main battle against peer-to-peer (P2P)
file-sharing has yet to be resolved. Another technology that threatens
right holders’ business models, especially in the film industry, is the
distribution of their content freely via webcasting. Although right
holders have paid little attention to webcasting as they continue their
campaign against P2P file-sharing, it poses similar threats and
presents the likely possibility of a future copyright battle.
This Article examines copyright and webcasting. I analyze
webcasting in comparison to past and current wars on copyright,
trying to unveil major differences between the two. I argue that the
current U.S. copyright régime treats webcasting inadequately and
should be reexamined, especially vis-à-vis end-user’s actions since
courts have yet to review cache copies created during Internet
transmissions. I opine that future legal solutions proposed to handle
webcasting, much like past attempts in similar matters, will be futile
since technology will continue to evolve at a faster rate than
legislation. Finally, I argue that the best solution to the current, as
well as future, legal battles to protect copyrights should be the
creation of a new business model similar to that of a levy system.
Harvard Journal of Sports & Entertainment Law, Jan 1, 2011
Internet file-sharing of copyrighted materials created a struggle between right holders, Internet... more Internet file-sharing of copyrighted materials created a struggle between right holders, Internet Service Providers (ISPs), and file-sharers. After several different attempts to resolve the struggle, many countries began to debate the possibility of a Three Strikes Policy (3SP), which includes, inter alia, providing for the termination of subscriptions and accounts of repeat infringers in appropriate circumstances. This policy has thus far been implemented by way of legislation in Taiwan (2009), South Korea (2009), France (2010), the United Kingdom (2010) and New Zealand (2011), and by means of private ordering in Ireland (2010). It is still under consideration elsewhere. The 3SP is portrayed as a panacea for Internet-related infringements.
This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users' Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders' power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.
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Papers by Eldar Haber
This Article focuses on the privacy concerns that IoToys raise. Part I briefly outlines the evolution of IoToys while examining their capacity to collect and retain data. Then, in reference to the legal framework chosen to protect children from online datafication twenty years ago, the next part discusses the American perception of children's privacy, focusing on COPPA. Through this analysis, this part will show how key market players currently comply with COPPA regulation, and evaluate whether such compliance is relevant to IoToys' dangers and challenges. Part III revisits COPPA, challenges it, and in calling for its recalibration offers some practical solutions to IoToys' privacy threats. Thereafter Part IV normatively evaluates children's conception of privacy and argues that IoToys' monitoring practices could jeopardize the parent-child relationship and calls for recalibrating children's privacy in the digital era. The final part summarizes the discussion and concludes that children's privacy matters today perhaps more than ever before, and that the potential movement toward a ubiquitous surveillance era should not lead to its demise.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognize life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the U.S. since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to much extent, supports life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, the Article examines consequences of failing to apply life expectancy considerations in practice, and proposes modest solutions to overcome this perceived problem.
This Essay scrutinizes the new threats to civilians in cyber warfare, emerging mostly from other civilians, and proposes a modest solution to the new informational threat. It examines the two traditional roles civilians play in the digital battlefield, both as attackers and as potential targets. Then, it describes the new threat of cyber warfare to civilians: Dissemination of personal information online. After analyzing the current legal measures available for civilians, and proving their insufficiency, the Essay discusses the need for a forgetful Internet by introducing and analyzing the EU’s right to be forgotten. It argues that a right to be forgotten is a dangerous tool that would lead to Internet censorship and therefore proposes a different legal-technological solution that could aid civilians in better coping with the new threat. Without such mechanism, we might be at risk of a digital civil war in cyberspace.
This Article introduces the criminal copyright gap. I review the legislative history of copyright criminalization since its birth in 1897, while dividing the process into two separate phases: The Low-Tech Phase that took place in the end of the 19th century; and the High-Tech Phase, which is further divided into two sub-phases: an analog phase, which occurred in the beginning of the 1970s and lasted until 1992, and a digital phase, which occurred in the beginning of 1992 and still lasts. Then, I examine the practical aspects of copyright criminalization by analyzing statistical data on criminal copyright filings. I argue that statistical data reveals that the on-going legislative process of copyright criminalization is not applied in practice, and thus search for the possible explanations of this criminal copyright gap. I opine that the criminal copyright gap leads to the conclusion that currently criminal copyright is not undergoing a paradigm shift. Finally, I conclude that although copyright law is not yet criminal-oriented, a paradigmatical shift towards a criminal copyright regime could occur in the near future, if enforcement of copyright infringements will become more substantial.
This Article examines the current and desired copyright protection of illegal works. I review elements of copyrightability while addressing content-restrictions in copyright, comparing them to other IP laws. After evaluating whether copyright law should impose content-restrictions on illegal works, and whether such impositions would be constitutional, I conclude that certain works that are linked to criminal activities and cause harm should not grant the felon profits. I, thus, propose a new framework of illegal copyright that de-incentives the creation of undesired works by eliminating profitability from copyrighted materials related to the crime and by reducing increased profitability from other works related to the felon, while compensating victims.
against technologies that enable people to use their copyrighted
materials without their consent. While copyright holders have
succeeded in some cases, their main battle against peer-to-peer (P2P)
file-sharing has yet to be resolved. Another technology that threatens
right holders’ business models, especially in the film industry, is the
distribution of their content freely via webcasting. Although right
holders have paid little attention to webcasting as they continue their
campaign against P2P file-sharing, it poses similar threats and
presents the likely possibility of a future copyright battle.
This Article examines copyright and webcasting. I analyze
webcasting in comparison to past and current wars on copyright,
trying to unveil major differences between the two. I argue that the
current U.S. copyright régime treats webcasting inadequately and
should be reexamined, especially vis-à-vis end-user’s actions since
courts have yet to review cache copies created during Internet
transmissions. I opine that future legal solutions proposed to handle
webcasting, much like past attempts in similar matters, will be futile
since technology will continue to evolve at a faster rate than
legislation. Finally, I argue that the best solution to the current, as
well as future, legal battles to protect copyrights should be the
creation of a new business model similar to that of a levy system.
This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users' Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders' power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.
This Article focuses on the privacy concerns that IoToys raise. Part I briefly outlines the evolution of IoToys while examining their capacity to collect and retain data. Then, in reference to the legal framework chosen to protect children from online datafication twenty years ago, the next part discusses the American perception of children's privacy, focusing on COPPA. Through this analysis, this part will show how key market players currently comply with COPPA regulation, and evaluate whether such compliance is relevant to IoToys' dangers and challenges. Part III revisits COPPA, challenges it, and in calling for its recalibration offers some practical solutions to IoToys' privacy threats. Thereafter Part IV normatively evaluates children's conception of privacy and argues that IoToys' monitoring practices could jeopardize the parent-child relationship and calls for recalibrating children's privacy in the digital era. The final part summarizes the discussion and concludes that children's privacy matters today perhaps more than ever before, and that the potential movement toward a ubiquitous surveillance era should not lead to its demise.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of quasi-judicial roles played by search engines online prior to the new EU rights regime, and compares them to their new judiciary role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. Essentially, this Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insists on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both search engines removal procedure and their decisions.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognize life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the U.S. since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to much extent, supports life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, the Article examines consequences of failing to apply life expectancy considerations in practice, and proposes modest solutions to overcome this perceived problem.
This Essay scrutinizes the new threats to civilians in cyber warfare, emerging mostly from other civilians, and proposes a modest solution to the new informational threat. It examines the two traditional roles civilians play in the digital battlefield, both as attackers and as potential targets. Then, it describes the new threat of cyber warfare to civilians: Dissemination of personal information online. After analyzing the current legal measures available for civilians, and proving their insufficiency, the Essay discusses the need for a forgetful Internet by introducing and analyzing the EU’s right to be forgotten. It argues that a right to be forgotten is a dangerous tool that would lead to Internet censorship and therefore proposes a different legal-technological solution that could aid civilians in better coping with the new threat. Without such mechanism, we might be at risk of a digital civil war in cyberspace.
This Article introduces the criminal copyright gap. I review the legislative history of copyright criminalization since its birth in 1897, while dividing the process into two separate phases: The Low-Tech Phase that took place in the end of the 19th century; and the High-Tech Phase, which is further divided into two sub-phases: an analog phase, which occurred in the beginning of the 1970s and lasted until 1992, and a digital phase, which occurred in the beginning of 1992 and still lasts. Then, I examine the practical aspects of copyright criminalization by analyzing statistical data on criminal copyright filings. I argue that statistical data reveals that the on-going legislative process of copyright criminalization is not applied in practice, and thus search for the possible explanations of this criminal copyright gap. I opine that the criminal copyright gap leads to the conclusion that currently criminal copyright is not undergoing a paradigm shift. Finally, I conclude that although copyright law is not yet criminal-oriented, a paradigmatical shift towards a criminal copyright regime could occur in the near future, if enforcement of copyright infringements will become more substantial.
This Article examines the current and desired copyright protection of illegal works. I review elements of copyrightability while addressing content-restrictions in copyright, comparing them to other IP laws. After evaluating whether copyright law should impose content-restrictions on illegal works, and whether such impositions would be constitutional, I conclude that certain works that are linked to criminal activities and cause harm should not grant the felon profits. I, thus, propose a new framework of illegal copyright that de-incentives the creation of undesired works by eliminating profitability from copyrighted materials related to the crime and by reducing increased profitability from other works related to the felon, while compensating victims.
against technologies that enable people to use their copyrighted
materials without their consent. While copyright holders have
succeeded in some cases, their main battle against peer-to-peer (P2P)
file-sharing has yet to be resolved. Another technology that threatens
right holders’ business models, especially in the film industry, is the
distribution of their content freely via webcasting. Although right
holders have paid little attention to webcasting as they continue their
campaign against P2P file-sharing, it poses similar threats and
presents the likely possibility of a future copyright battle.
This Article examines copyright and webcasting. I analyze
webcasting in comparison to past and current wars on copyright,
trying to unveil major differences between the two. I argue that the
current U.S. copyright régime treats webcasting inadequately and
should be reexamined, especially vis-à-vis end-user’s actions since
courts have yet to review cache copies created during Internet
transmissions. I opine that future legal solutions proposed to handle
webcasting, much like past attempts in similar matters, will be futile
since technology will continue to evolve at a faster rate than
legislation. Finally, I argue that the best solution to the current, as
well as future, legal battles to protect copyrights should be the
creation of a new business model similar to that of a levy system.
This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users' Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders' power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.