Internet Law
The Continued (In)visibility of Cyber Gender Abuse
This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around cyber gender abuse, recognize the profound harms it causes, and pursue a reform agenda to combat it.
Agonistic Privacy & Equitable Democracy
Privacy protections play a vital role in disrupting surveillance-caused subordination and should be at the forefront of efforts to reform digital and physical public space. Robust privacy protections empower marginalized groups to safely participate, while increasing heterogeneity within the public sphere and enabling the healthy contestation of ideas.
Beyond the Public Square: Imagining Digital Democracy
To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic cliché of the unregulated public square and commit to the hard work of designing for democracy.
Dismantling the “Black Opticon”: Privacy, Race, Equity, and Online Data-Protection Reform
African Americans suffer a discriminatory predicament, a “Black Opticon” of panoptic oversurveillance, ban-optic exclusion and con-optic predation. The Virginia Consumer Data Protection Act, a federal Data Protection Act, and proposed FTC expansions are measured critically against imperatives of civil rights and a race-conscious African American Online Equity Agenda.
Language on the Move: “Cancel Culture,” “Critical Race Theory,” and the Digital Public Sphere
Scores of people have been talking about “cancel culture” and “Critical Race Theory” recently. However, what people mean when they use the terms varies wildly. This Essay analyzes the role that the digital public sphere has played in generating these examples of language on the move.
Platform Realism, Informational Inequality, and Section 230 Reform
Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.
The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression
This Feature documents the creation of the Facebook Oversight Board, an independent external body that provides appellate review of Facebook’s content-moderation decisions and policy recommendations. Should the Oversight Board gain legitimacy, it has tremendous precedential potential for democratizing private platforms’ governance of global online speech.
Prove It! Judging the Hostile-or-Warlike-Action Exclusion in Cyber-Insurance Policies
Cyber-insurance policies often include a hostile-or-warlike action exclusion. The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-coverage disputes. It concludes with four proposals to improve attribution and adjudication.
Sexual Privacy
New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy that relies on laws and markets.
Data Rights and Data Wrongs: Civil Litigation and the New Privacy Norms
This Essay argues that that civil litigation between private parties in the data privacy space is shaping important privacy norms. Because no comprehensive data privacy law exists in the United States, litigants must rely on doctrines that are ill suited to the legal questions raised by the mass collection of personal data.
Sovereign Difference and Sovereign Deference on the Internet
This Response to Andrew Woods makes two points. First, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it questions the efficacy of Woods’s normative theory of judicial comity.
Litigating Data Sovereignty
Internet disputes increasingly occur across borders. The key question, this Article contends, is not whether states can exert control over data, but rather the shape their exercises of sovereign power will take. Given this reality, application of sovereign-deference doctrines represents the best hope for the future of global internet governance.
Fourth Amendment Seizures of Computer Data
119 Yale L.J. 700 (2010). What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.
Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports
119 Yale L.J. 131 (2009).
Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web
118 Yale L.J. 1945 (2009).