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Telegraph, Telephone and the Internet: The Making of the Symbiotic Model of Surveillance States
Get PDFIn the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the Big Brother metaphor fails to capture the most important dimension of the database problem. In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. Balkin considered this a permanent feature of the governance. Balkin noted, much of the surveillance in the National Surveillance State will be conducted and analyzed by private parties, and that the line between public and private modes of surveillance and security has blurred if not vanished.
This Article aims to build on the insights from Daniel J. Solove and Jack M. Balkin in constructing a model of the surveillance state that is based on the public-private partnership in sharing data. I will call this the symbiotic model of the surveillance state. There is no doubt that the surveillance state has been investing and will continue to invest its own resources in building its own data-
the National Security Agency (NSA) being one prominent example. The symbiotic model, however, claims that an increasing amount of data is collected and stored in private hands, and the surveillance state craves access to those data. After all, it is the private companies who create our favorite apps, gadgets, browsers, and platforms that collect data telling the most intimate aspects of our lives. In the words of Bruce Schneier, an acute observer of the tech world, what we face is a very intimate form of surveillance.
This Article proposes a symbiotic model of the surveillance state to provide a framework to understand the breadth and depth of surveillance in contemporary cyberspace in domestic law enforcement processes. To achieve this goal, my analysis is built on insights from three dimensions: conceptual, historical, and comparative. In the conceptual dimension, this Article identifies three elements in the regulatory relations between data collectors and the regulatory state: (a) the very foundation for the control of data-property rights-which establishes and sets limits on constitutional constraints of the symbiotic relationship; (b) the doctrinal and statutory framework that forms the backbone of the symbiotic relationship; and (c) institutional dynamics in the symbiotic relationship. Bringing these elements together, this Article argues that, in the United States, digital platforms such as Google and Meta (Facebook) are data collectors, and their property claim over data is recognized by a judge-made rule called the third-party doctrine, which is interpreted from the Fourth Amendment. This constitutional rule creates vast space and flexibility for the surveillance state to access the data by a convenient legal instrument called a subpoena. Data collectors, from time to time, resist the requests from surveillance states and fight the burden imposed on them; thus, the relationship is a dynamic one
Trademarks in an Algorithmic World
Get PDFAccording to the sole normative foundation for trademark protection—“search costs” theory—trademarks transmit useful information to consumers, enabling an efficient marketplace. The marketplace, however, is in the midst of a fundamental change. Increasingly, retail is virtual, marketing is data-driven, and purchasing decisions are automated by AI. Predictive analytics are changing how consumers shop. Search costs theory no longer accurately describes the function of trademarks in this marketplace. Consumers now have numerous digital alternatives to trademarks that more efficiently provide them with increasingly accurate product information. Just as store shelves are disappearing from consumers’ retail experience, so are trademarks disappearing from their product search. Consumers may want to buy a product where the brand is the essential feature of the product such that the brand is the product, but they no longer need the assistance of a trademark to find the product.
By reflexively continuing to protect trademarks in the name of search costs theory, courts give only lip service to consumer interests without questioning whether trademarks are fulfilling any useful information function. In many cases, trademarks may actually misinform consumers by masking the identity of the producer or its distanced relationship with the trademark owner. Without having deliberately decided to do so, trademark law is now protecting “brands as property” without any supportive normative rationale. Removing the veil of search costs theory will enable courts to consider whether trademark protection is justified in particular cases
Moderator: Improving the Asset Recovery Mechanisms in the South-Eastern Europe: Positive Stories and Lessons Learned
No full text“THIS ARTWORK IS ALWAYS ON SALE”: THE NEED FOR A U.S. RESALE ROYALTY RIGHT FOR DIGITAL VISUAL ARTISTS IN THIS TECHNOLOGICAL AGE, AND PROOF OF CONCEPT THROUGH THE BLOCKCHAIN AND NFTs EXPLOSION
Get PDFWith the explosion of the internet, social media, non-fungible tokens (“NFTs”), and blockchain technology, there has been a shift in how people consume and commercialize art, thus resulting in the increased use of digital visual mediums to create, purchase, and receive payment for visual artwork. This increase has renewed the question of whether the United States should implement a resale royalty right for visual work artists. This question is of concern, especially in this digital age where it has become more difficult for digital visual artists to receive equitable compensation for their work, like that of their musical and written counterparts, due to how the internet operates. As a result of the lack of a resale royalty right within the United States, many visual artists have been left on their own to create means by which they can receive equitable compensation for their work outside of the initial sale. The lack of governmental assistance in rectifying the inequitable compensation between visual artists and other artists under copyright law has further pushed these visual artists to find payment for their work in the digital arena. For decades, the idea of implementing a version of the droit de suite or resale royalty right for visual artists has been discarded by those in the legislative branch of the United States. While those that have opposed such a right cite the (1) lack of financial incentives for artists; (2) negative economic impact on to cost of artwork; and (3) administrative effort required to develop and maintain such a right as reasons why it would not be achievable within the United States, we have seen through the explosion and use of NFTs and blockchain technology that many of these concerns can be dismissed. This Article argues that the explosion and use of NFTs and blockchain technology to facilitate a resale royalty right amongst digital visual artists provides Congress with a proof of concept that the implementation of such a right has practical potential and could be feasible
GOOGLE DORKING OR LEGAL HACKING: FROM THE CIA COMPROMISE TO YOUR CAMERAS AT HOME, WE ARE NOT AS SAFE AS WE THINK
Get PDFThis article addresses the issue of Google Dorking (“Dorking”): an underestimated, overlooked computer-crime technique utilized by hackers, cyberstalkers, and cybercriminals alike. Google Dorking is the specialized use of the Google Search engine which can be used to uncover sensitive data unintentionally exposed to the public online. Dorking can be beneficial and harmless when used by innocent researchers, journalists, and curious users. But it can be incredibly harmful if utilized by malicious actors. Dorking is behind notorious and infamous computer crimes that appear vastly different on the surface, such as a sextortion case involving over a hundred women including Miss Teen USA, an infamous hack of the Bowman Avenue Dam in New York, an intelligence failure that killed over 30 CIA assets and compromised around 70% of CIA operations internationally, and countless cases where legal officials, celebrities, politicians, families, and the average person alike have fallen victim. Anyone with access to the internet can “Google Dork”; the law currently fails to address the legality of this act or recognize it in the justice system. No one is nearly as safe as they think they are