Day: May 19, 2022

Chin on Introducing Independence to the Foreign Intelligence Surveillance Court

Simon Chin (Yale Law School) has posted “Introducing Independence to the Foreign Intelligence Surveillance Court” (131 Yale L.J. 655 (2021)) on SSRN. Here is the abstract:

The Foreign Intelligence Surveillance Court (FISC), which reviews government applications to conduct surveillance for foreign intelligence purposes, is an anomaly among Article III courts. Created by the Foreign Intelligence Surveillance Act (FISA) in 1978, the FISC ordinarily sits ex parte, with the government as the sole party to the proceedings. The court’s operations and decisions are shrouded in secrecy, even as they potentially implicate the privacy and civil liberties interests of all Americans. After Edward Snowden disclosed the astonishing details of two National Security Agency mass surveillance programs that had been approved by the FISC, Congress responded with the USA FREEDOM Act of 2015. The bill’s reforms included the creation of a FISA amicus panel: a group of five, security-cleared, part-time, outside attorneys available to participate in FISC proceedings at the court’s discretion. Policy makers hoped to introduce an independent voice to the FISC that could challenge the government’s positions and represent the civil liberties interests of the American people. With the FBI’s investigation of Trump campaign advisor Carter Page in 2016 and 2017 raising new concerns about the FISC’s one-sided proceedings, it is now imperative to assess the FISA amicus provision: how it has functioned in practice since 2015, what effects it has had on foreign intelligence collection, and whether it has achieved the objectives that motivated its creation.

To conduct this assessment and overcome the challenges of studying a secret court, this Note draws upon the first systematic set of interviews conducted with six of the current and former FISA amici. This Note also includes interviews with two former FISA judges and three former senior government attorneys intimately involved in the FISA process. Using these interviews, as well as declassified FISA material, this Note presents an insiders’ view of FISC proceedings and amicus participation at the court. The Note arrives at three main insights about the amicus panel. First, amicus participation at the FISC has not substantially interfered with the collection of timely foreign intelligence information. Second, the available record suggests that amici have had a limited impact on privacy and civil liberties. Third, there are significant structural limitations to what incremental reforms to the existing amicus panel can accomplish. Instead, this Note supports the creation of an office of the FISA special advocate—a permanent presence at the FISC to serve as a genuine adversary to the government. While Congress considered and rejected a FISA special advocate in 2015, this Note reenvisions the original proposal with substantive and procedural modifications to reflect the lessons of the past six years, as well as with a novel duty: oversight of approved FISA applications. This Note’s proposal would address both the limitations of the FISA amicus panel that have become manifest in practice and the new Carter Page-related concerns about individual surveillance.

White on The Dead Hand of Cellophane and the Federal Google and Facebook Antitrust Cases: Market Delineation Will Be Crucial

Lawrence J. White (NYU Stern School of Business) has posted “The Dead Hand of Cellophane and the Federal Google and Facebook Antitrust Cases: Market Delineation Will Be Crucial” (The Antitrust Bulletin, Forthcoming) on SSRN. Here is the abstract:

The DOJ and FTC monopolization cases against Google and Facebook, respectively, represent the most important federal non-merger antitrust initiatives since (at least) the 1990s. As in any monopolization case, market delineation will be a central feature of both cases – as it was in the du Pont Cellophane case of 65 years ago. Without a delineated market, how can one determine whether a company has engaged in monopolization? Unfortunately, there is currently no accepted market delineation paradigm that can help the courts address this issue for monopolization cases. And this void generally cannot be filled by the market delineation paradigm that is embedded in the DOJ-FTC “Horizontal Merger Guidelines”: Although this paradigm has had almost 40 years of usage and is now well-established and -accepted for merger analysis, this paradigm generally has no applicability for market delineation in monopolization cases.
This article expands on this argument and shows the potential difficulties that are likely to arise in this area of market delineation and the consequent problems for both cases.
This article also points the way toward a paradigm that offers a sensible approach to dealing with these difficulties.

Kraizberg on Non-fungible Tokens: A Bubble or the End of an Era of Intellectual Property Rights

Elli Kraizberg (Bar-Ilan University) has posted “Non-fungible Tokens: A Bubble or the End of an Era of Intellectual Property Rights” on SSRN. Here is the abstract:

The viability of the exponentially growing non-fungible token (NFT) markets is evaluated by identifying potential value-generating mechanisms that may be rationalized. NFTs are claimed to securitize “ownership rights short of use”. This paper evaluates the likelihood that NFTs will replace existing mechanisms that protect producers’ rightful claim to use their assets, or replace the need to apply the legal code that governs intellectual property rights (IPR). A condition for this shift is derived for a category of assets whose use or consumption does not reduce their scarce supply.

Kuner on The Path to Recognition of Data Protection in India: The Role of the GDPR and International Standards

Christopher Kuner (Vrije Universiteit Brussel – LSTS; Maastricht University – Faculty of Law; Centre for European Legal Studies) has posted “The Path to Recognition of Data Protection in India: The Role of the GDPR and International Standards” (National Law Review of India, vol. 33 no. 1 (2021)) on SSRN. Here is the abstract:

By providing rules of the road for data processing, data protection legislation has become a key enabler of the information society. The European Union’s General Data Protection Regulation (GDPR) has been highly influential around the world, and the recent Schrems II judgment of the Court of Justice of the EU, which strengthened restrictions on international data transfers under EU law, has important implications for India as it prepares to adopt data protection legislation. While the Puttaswamy judgment that recognised privacy as a fundamental right represents a great stride forward for privacy protection in India, legislation is necessary to establish the right to data protection in the Indian legal system. The proposed Personal Data Protection Bill does not provide a sufficiently high standard of data protection, particularly in light of surveillance initiatives and legal mandates to collect data under Indian law. India should view the strengthening of its legal framework for data protection not just as a way to receive an EU adequacy decision, but also as having broad societal benefits. In adopting data protection legislation India should align itself both with the GDPR and also more broadly with data protection standards of important international bodies, such as those of the Council of Europe and the OECD.

Marlan on The Dystopian Right of Publicity

Dustin Marlan (University of Massachusetts School of Law) has posted “The Dystopian Right of Publicity” (Berkeley Technology Law Journal, Vol. 37 2022) on SSRN. Here is the abstract:

Our society frequently describes privacy problems with the dystopian metaphor of George Orwell’s 1984. Understood through the Orwellian metaphor—and particularly the “Big Brother is watching you” maxim—privacy rights are forcefully invaded by the government’s constant surveillance and disclosures of personal information. Yet, privacy’s coined opposite, the right of publicity—“the right of every human being to control the commercial use of his or her identity”—still lacks an appropriate metaphor, making it difficult to conceptualize and thus to regulate effectively.

This Article suggests that the problems with a commercially transferable right of publicity can be usefully analogized to another chilling dystopia, Aldous Huxley’s Brave New World. Huxley wrote Brave New World as an expression of the anxiety of losing one’s individual identity in a technology-driven future. In the novel, Huxley envisioned a utilitarian society controlled through technological manipulation, conspicuous consumption, social conditioning, and entertainment addiction. In contrast to Big Brother’s forceful coercion, pacified citizens in the “World State” society willingly participate in their own servitude.

Commentators often focus on the fact that litigated publicity cases tend to overprotect celebrities’ fame to the detriment of creators’ First Amendment rights. The vast majority of publicity rights, however, actually belong to ordinary citizens. The Huxleyan metaphor’s depiction of technological manipulation, social conditioning, and identity loss thus reveals the constant, but constantly overlooked, publicity problem this Article labels the “pleasurable servitude.” In effect, by consenting to terms of service on social media, ordinary citizens voluntarily license rights in their identities to internet platforms in exchange for access to the pleasures of digital realities. Through this unregulated mass transfer of publicity rights, social networks strip away their users’ identities and sell them to advertisers as commodities. This Article claims that the pleasurable servitude is a form of surveillance capitalism deserving of regulation by means of “publicity policies” that would function analogously to privacy policies.

Chesterman on The Robot Century

Simon Chesterman (National University of Singapore – Faculty of Law) has posted “The Robot Century” on SSRN. Here is the abstract:

The word ‘robot’ entered the modern lexicon a hundred years ago with the première at Prague’s National Theatre of Karel Čapek’s play R.U.R. in 1921. Set on an island ‘somewhere on our planet’, Rossum’s Universal Robots recounts the creation of roboti. Not so much mechanical creatures as stripped down versions of humans, they were biological entities created to be strong and intelligent, but without souls. Though dated in many ways — the limited humour derives from six men on the island vying for the hand of the only woman — the play was prescient in its vision of a world in which automatons are entrusted with serving ever more of humanity’s needs and, eventually, fighting its wars. Reviews of the New York production called it a ‘brilliant satire on our mechanized civilization; the grimmest yet subtlest arraignment of this strange, mad thing we call the industrial society of today.’ A century later, debates over the place of robots in society still echo themes in the play: how to take advantage of the benefits of technology without unacceptable risk; what entitlements are owed to entities that at least mimic and perhaps embody human qualities; what place is left for humanity if and when we are surpassed by our creations.

Wang on China Meets Digital Currency: E-CNY and Its Implications for Businesses

Heng Wang (UNSW – Faculty of Law) has posted “China Meets Digital Currency: E-CNY and Its Implications for Businesses” (The Law Gazette, November 2021) on SSRN. Here is the abstract:

China is likely to be the first major economy to issue central bank digital currency (CBDC). China’s CBDC, e-CNY, may lead to a new ecosystem that would profoundly affect business, product offerings and business practice. E-CNY is likely to affect both local and international businesses, particularly those with a presence in China or those who commonly transact with Chinese actors. There is also the possibility of e-CNY use outside of China. If China’s CBDC practice and standards affect international practice (such as through standard making), e-CNY has the potential to affect the broader businesses community. This paper discusses the following crucial questions: how to understand e-CNY? What does e-CNY mean for local and international businesses? Businesses need to adequately prepare for a new business landscape with e-CNY that is not only a currency but also generates large amounts of data.