Volume 19, Issue 1 Articles

A Storm in ISP Safe Harbor Provisions: The Shift From Requiring Passive-Reactive to Active-Preventative Behavior and Back 

By: Vojtech Mlynar

There has been a storm in the safe harbor for Internet Service Providers (ISPs). Since the formation of the Internet, ISPs have been under pressure to assume more liability for information they transmit or store. For example, interested parties, trying to put ISPs in the same position as offline content publishers, pushed for a strong liability regime for online defamatory content and copyright infringement. However, subjecting ISPs to this sort of liability regime arguably stifles the rapidly growing online environment. Thus, policy makers in the United States and the European Union (EU) adopted safe harbors for ISPs in certain contexts. As long as an ISP did not exercise editorial control over the content posted by a third-party user it remained immune from liability.

From then on, global developments regarding ISP liability have been very different. Courts in the United States generally offer consistent interpretations of the safe harbor rules. The United States Court of Appeals for the Second Circuit recently confirmed the strong protection given to ISPs in Viacom Int’l, Inc. v. YouTubea well known case alleging “massive” and “brazen” copyright infringement by a video-sharing website. However, European courts cannot consistently agree on the interpretation of ISP safe harbor provisions in the EU. This Article describes developments pertaining to ISP liability in the EU shaped by the decisions of European courts, and the global consequences of such decisions.

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Kicking Start-ups Out of Online Financial Markets: Why the FTC Should Regulate Websites to Supplement the SEC 

By: Guy Noyes

Crowdfunding currently plays a central role in many businesses. For some founders, the ability to raise monetary contributions from a large number of people represents a novel means of investment that works in conjunction with other investment opportunities to get a company off the ground. Conversely, other fundraisers view crowdfunding as a way to circumvent the traditional venture capital system to reach consumers and get a product to market. The crowdfunding model is adaptable enough to encompass these contrary goals. Crowdfunding works as a means of raising money by soliciting contributions from a large number of people over the internet. The concept of soliciting funds for a new product from a large number of people, rather than securing loans from banks or moneylenders, has existed for a long time. For example, the Encyclopedia of Didero reached seventeen volumes by the year 1772 due to the support of the 4,000 subscribers who funded the work before it was published. People seeking capital contributions for projects (“founders”) can reach a broad audience by soliciting support from patrons on the Internet. Each individual contribution can be quite small, yet with numerous potential supporters the aggregate sum may be very large.

Various web-based services have emerged providing crowdfunding platforms. The most famous is Kickstarter.

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Since online sites like Kickstarter process large volumes of cash flow it seems irresponsible for Congress to completely avoid regulating crowdfunding. Crowdfunding has the potential to improve the economy by enabling new companies to emerge; thus, increasing the number of job opportunities. The intrigue brought by the large amounts of money generated through crowdfunding may also entice the development of fraudulent businesses or poorly planned ventures. If users of crowdfunding begin to view the model as too risky it will ultimately hurt the sustainability of the technology.

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Up in the Air: Clarifying Cloud Storage Protections 

By: Erik C. Shallman

Imagine you possess some handwritten documents that you would like to keep from prying eyes. You purchase a fireproof safe and install it in your den. Only you and the safe manufacturer know the code to the safe, so you feel comfortable locking away the documents and going about your business. You know that even if law enforcement officers somehow coerced the manufacturer into giving them the code, they could not simply sneak into your home and open the safe because the Fourth Amendment requires the officers to obtain a warrant based on probable cause before searching your home.

Eventually, you have too many files to fit in your safe, let alone your den. You contract with a storage company to store the documents in a warehouse accessible only to you. You trade away the security of keeping the documents in your home for the comfort of an empty living room. But still, the documents are in a closed container, and you know the police must get a warrant to search your storage unit.

As time goes by, you embrace the digital world and no longer use handwritten ledgers. Instead, you store all of your documents as text, spreadsheet, or image files on your laptop’s hard drive.

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You feel secure. You presume Dropbox’s servers are similar to your old third-party storage unit, so you believe your documents are safe from both destruction and the government. But you might be wrong. Under current law, police officers may be able to access your cloud-stored documents without a warrant because of the Third-Party Doctrine. A broad reading of this doctrine suggests that information voluntarily revealed to a third party retains no Fourth Amendment protection. Thus, if the Third-Party Doctrine applies to cloud storage, knowingly sharing your data with Dropbox gives Dropbox the right to convey that data to the government without implicating the Fourth Amendment. In other words, the Third-Party Doctrine may allow police access to your cloud-stored data without a warrant.

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Protecting Your Texting: Gaps in Fourth Amendment Protection for Modern Communication 

By: Lauren Harriman

Amy wakes up to her alarm going off. The first thing she does is roll over and checks her phone. She sees a text message from her boyfriend saying, “Good morning beautiful.” She replies, “Good morning, see you tonight!” Amy sees another text message from her friend, Sara, “Hey are we still on for lunch at Café Rora?” Amy responds, “Yeah, as long as 12 is okay. I have class and need to be back on campus by 1.” Her friend answers, “12 is perfect. I’ll see you then.” All of these communications occur before Amy even reaches her bathroom, where she also takes her phone to ensure she does not miss any communications.

Once Amy arrives at school, she uses her phone under her desk to sneak texts to her classmates. She also sends another text to her boyfriend, “I bought new underwear for tonight ;).” After meeting Sara for lunch, Amy receives a text from her mother asking how her day is going. Her mother knows better than to try and call Amy—phone calls take time and undivided attention, neither of which Amy has. When Amy sits down to do the homework for her next class, she realizes she forgot to write down the assignment and texts a classmate to ask what it was. Her classmate texts back almost immediately with the assignment.

Once she finishes her homework, Amy drives to meet her brother for dinner. On the way to dinner Amy realizes that she left her phone at home, but does not worry too much because she already confirmed the time and place where she is meeting her brother. Unbeknownst to Amy, her brother possesses a bag full of marijuana he just purchased. Her brother does not have a car, and after dinner Amy offers to drive him home before going to meet her boyfriend. While driving her brother home, a police officer pulls Amy over for speeding. When the officer looks into the car with his flash light, her brother neglects to hide the plastic bag containing the marijuana. The officer asks both Amy and her brother to step out of the vehicle, and arrests them for possession of marijuana. Until recently, if the officer found a cell phone on Amy or her brother he would have been able to immediately conduct a search and read through an individual’s text messages.2 Now, the officer must first obtain a warrant.

However, if the officer waits and asks Amy’s service provider to turn over all of her stored text messages as part of an investigation into Amy or her brother, the officer can obtain stored text messages dating as far back as the officer desires. Because of this one incident, law enforcement could acquire a record that provides an immense insight into Amy’s private daily life.

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