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Squaring the Circle Between Freedom of Expression and Platform Law 论言论自由与平台法之间的矛盾
Pub Date : 2020-05-07 DOI: 10.5195/tlp.2020.236
Michael Karanicolas
Among the greatest emerging challenges to global efforts to promote and protect human rights is the role of private sector entities in their actualization, since international human rights rules were designed to apply primarily, and in many cases solely, to the actions of governments. This paradigm is particularly evident in the expressive space, where private sector platforms play an enormously influential role in determining the boundaries of acceptable speech online, with none of the traditional guardrails governing how and when speech should be restricted. Many governments now view platform-imposed rules as a neat way of sidestepping legal limits on their own exercise of power, pressuring private sector entities to crack down on content which they would be constitutionally precluded from targeting directly. For their part, the platforms have grown increasingly uncomfortable with the level of responsibility they now wield, and in recent years have sought to modernize and improve their moderation frameworks in line with the growing global pressure they face. At the heart of these discussions are debates around how traditional human rights concepts like freedom of expression might be adapted to the context of “platform law.” This Article presents a preliminary framework for applying foundational freedom of expression standards to the context of private sector platforms, and models how the three-part test, which lies at the core of understandings of freedom of expression as a human right, could be applied to platforms’ moderation functions.
在促进和保护人权的全球努力中出现的最大挑战之一是私营部门实体在实现这些规则方面的作用,因为国际人权规则的设计主要适用于,而且在许多情况下仅适用于政府的行动。这种模式在表达空间尤其明显,在这里,私营部门平台在确定可接受的在线言论边界方面发挥着巨大的影响力,没有任何传统的护栏来管理言论应该如何以及何时受到限制。许多政府现在认为,平台强加的规则是一种巧妙的方式,可以规避对自己行使权力的法律限制,迫使私营部门实体打击那些在宪法上被禁止直接针对的内容。对这些平台来说,它们对自己现在承担的责任越来越感到不安,近年来,它们一直在寻求现代化和改进自己的节制框架,以应对它们面临的日益增长的全球压力。这些讨论的核心是围绕如何使言论自由等传统人权概念适应“平台法”的背景而展开的辩论。本文提出了将基本言论自由标准应用于私营部门平台的初步框架,并对如何将三部分测试应用于平台的审核功能进行了建模,这是对言论自由作为一项人权的理解的核心。
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引用次数: 4
Children’s Right to Privacy on the Internet in the Digital Age 数字时代儿童在互联网上的隐私权
Pub Date : 2020-05-07 DOI: 10.5195/tlp.2020.238
Bethany Brown
As access to the internet has become easier and more widespread in recent years, children have also started getting both increased and easier access to the internet, whether at home or at school. This access, coupled with a decrease in supervision while on the internet, implicates certain questions in regard to children. Questions involving data privacy rights are relevant to both adults and children in the digital age, but there are certain concerns that arise uniquely for children. This Note will focus on one piece of legislation that concerns data privacy rights for children—the Children’s Online Privacy Protection Act (COPPA) (16 C.F.R. § 312). The main question that this Note will seek to answer is whether COPPA is adequate in protecting children’s data privacy rights. Part II will explore the history behind COPPA and explain what it actually is, defining key terms as used in the legislation as well as explaining certain provisions. Part III will discuss problems that have arisen under COPPA recently, analyzing lawsuits that have occurred under COPPA as well as the legislation’s shortcomings which have been highlighted in recent events. Finally Part IV will offer possible solutions to these problems, explaining what other scholars have suggested as solutions to these problems as well as other suggestions.
近年来,随着上网变得越来越容易,越来越普遍,孩子们也开始越来越容易地接触到互联网,无论是在家里还是在学校。这种访问,加上在互联网上监督的减少,涉及到儿童的某些问题。在数字时代,涉及数据隐私权的问题与成人和儿童都有关,但有些问题是儿童独有的。本文将重点关注一项涉及儿童数据隐私权的立法-儿童在线隐私保护法(COPPA) (16 C.F.R.§312)。本说明试图回答的主要问题是COPPA是否足以保护儿童的数据隐私权。第二部分将探讨COPPA背后的历史,并解释它实际上是什么,定义立法中使用的关键术语以及解释某些条款。第三部分将讨论最近COPPA下出现的问题,分析COPPA下发生的诉讼以及最近事件中凸显的立法缺陷。最后,第四部分将为这些问题提供可能的解决方案,解释其他学者提出的解决这些问题的方法以及其他建议。
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引用次数: 0
Privacy, Risk, Anonymization and Data Sharing in the Internet of Health Things 健康物联网中的隐私、风险、匿名化和数据共享
Pub Date : 2020-04-06 DOI: 10.5195/tlp.2020.235
Liane Colonna
This paper explores a specific risk-mitigation strategy to reduce privacy concerns in the Internet of Health Things (IoHT): data anonymization. It contributes to the current academic debate surrounding the role of anonymization in the IoHT by evaluating how data controllers can balance privacy risks against the quality of output data and select the appropriate privacy model that achieves the aims underlying the concept of Privacy by Design. It sets forth several approaches for identifying the risk of re-identification in the IoHT as well as explores the potential for synthetic data generation to be used as an alternative method to anonymization for data sharing.
本文探讨了一种特定的风险缓解策略,以减少健康物联网(IoHT)中的隐私问题:数据匿名化。它通过评估数据控制器如何平衡隐私风险与输出数据质量,并选择适当的隐私模型来实现隐私设计概念的目标,从而为当前围绕匿名化在IoHT中的作用的学术辩论做出了贡献。它提出了识别IoHT中重新识别风险的几种方法,并探讨了合成数据生成的潜力,可作为数据共享匿名化的替代方法。
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引用次数: 2
Can the CCPA Access Right Be Saved? Realigning Incentives in Access Request Verification CCPA的访问权还能保存吗?重新调整访问请求验证的激励机制
Pub Date : 2020-02-12 DOI: 10.5195/tlp.2020.232
Rebecca Iafrati
The California Consumer Privacy Act access right has the potential to give Californians a level of control over their personal information that is unprecedented in the United States. However,  consumer privacy interests will be in peril  unless the access right is accompanied by an effective access request verification requirement. Requiring companies to respond to access requests when they cannot verify that the requestor is the subject of the requested data puts sensitive personal information at risk. Inversely, allowing companies to shirk their access request responsibilities by claiming that data is unverifiable diminishes consumers’ data control rights. Thus, in the context of access request verification policy, there is an inherent tension between privacy as confidentiality and privacy as control. The success of the access right, and thus all CCPA data control rights, hinges on an access request verification policy that successfully balances these competing privacy interests. The endemic identity theft caused by credit application verification systems demonstrates why such balancing cannot be wholly left to private companies. In the credit context, balancing has been driven by the profit maximization interests of businesses, which currently do not align with consumer privacy interests. Fortunately, several scholars have proposed methods for aligning these divergent interests. The strengths and weaknesses from these proposed solutions to identity theft provide a useful framework for building a system that incentivizes companies to prioritize consumer privacy when developing access request verification systems.
《加州消费者隐私法》的访问权有可能使加州人对自己的个人信息有一定程度的控制,这在美国是前所未有的。然而,除非访问权附有有效的访问请求验证要求,否则消费者的隐私利益将处于危险之中。要求公司在无法核实请求者是所请求数据的主体时对访问请求作出回应,会使敏感的个人信息处于危险之中。相反,允许公司以数据不可验证为由逃避其访问请求责任,会削弱消费者的数据控制权。因此,在访问请求验证策略的上下文中,作为机密性的隐私和作为控制的隐私之间存在固有的紧张关系。访问权限的成功,以及所有CCPA数据控制权的成功,取决于访问请求验证策略能否成功地平衡这些相互竞争的隐私利益。信用申请验证系统导致的普遍身份盗窃表明,为什么这种平衡不能完全留给私营公司。在信贷环境中,平衡是由企业的利润最大化利益驱动的,而这目前与消费者的隐私利益并不一致。幸运的是,一些学者已经提出了协调这些不同利益的方法。这些提出的身份盗窃解决方案的优点和缺点为建立一个激励公司在开发访问请求验证系统时优先考虑消费者隐私的系统提供了一个有用的框架。
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引用次数: 2
Autonomous Vehicles: A Future Fast Approaching With No One Behind the Wheel 自动驾驶汽车:无人驾驶的未来即将到来
Pub Date : 2020-01-07 DOI: 10.5195/tlp.2020.231
Sean Bollman
Driverless automobiles may redefine public safety and efficiency, while turning the automobile industry on its head. These innovative machines will pose a challenge to regulatory schemes spanning from transportation and insurance to products liability and internet laws. Enormous companies like BMW, Audi, Uber, and Google have already taken part in placing this rapidly growing technology into consumer hands. The rift that this innovation will create in other industries, coupled with the safety and privacy concerns surrounding its design, will be the catalyst for contentious legislative and legal debates. This Note will explore the ways in which industry flexibility, state and federal involvement, and clearer regulations may be carefully balanced to help the driverless car industry stay on the road. Part one will address the development and historical challenges of driverless vehicles, while parts two and three will look at potential solutions to these challenges.
无人驾驶汽车可能会重新定义公共安全和效率,同时彻底改变汽车行业。这些创新机器将对从运输和保险到产品责任和互联网法律的监管计划构成挑战。宝马(BMW)、奥迪(Audi)、优步(Uber)和b谷歌等大公司已经将这种快速发展的技术投入到消费者手中。这项创新将在其他行业造成的裂痕,加上围绕其设计的安全和隐私担忧,将成为引发争议的立法和法律辩论的催化剂。本文将探讨如何在行业灵活性、州和联邦政府的参与以及更明确的监管之间取得平衡,以帮助无人驾驶汽车行业继续上路。第一部分将讨论无人驾驶汽车的发展和历史挑战,而第二部分和第三部分将着眼于这些挑战的潜在解决方案。
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引用次数: 0
GOVERNANCE OF THE FACEBOOK PRIVACY CRISIS facebook隐私危机的治理
Pub Date : 2020-01-07 DOI: 10.2139/ssrn.3363002
L. Trautman
In November 2018, The New York Times ran a front-page story describing how Facebook concealed knowledge and disclosure of Russian-linked activity and exploitation resulting in Kremlin led disruption of the 2016 and 2018 U.S. elections, through the use of global hate campaigns and propaganda warfare. By mid-December 2018, it became clear that the Russian efforts leading up to the 2016 U.S. elections were much more extensive than previously thought. Two studies conducted for the United States Senate Select Committee on Intelligence (SSCI), by: (1) Oxford University’s Computational Propaganda Project and Graphika; and (2) New Knowledge, provide considerable new information and analysis about the Russian Internet Research Agency (IRA) influence operations targeting American citizens.By early 2019 it became apparent that a number of influential and successful high growth social media platforms had been used by nation states for propaganda purposes. Over two years earlier, Russia was called out by the U.S. intelligence community for their meddling with the 2016 American presidential elections. The extent to which prominent social media platforms have been used, either willingly or without their knowledge, by foreign powers continues to be investigated as this Article goes to press. Reporting by The New York Times suggests that it wasn’t until the Facebook board meeting held September 6, 2017 that board audit committee chairman, Erskin Bowles, became aware of Facebook’s internal awareness of the extent to which Russian operatives had utilized the Facebook and Instagram platforms for influence campaigns in the United States. As this Article goes to press, the degree to which the allure of advertising revenues blinded Facebook to their complicit role in offering the highest bidder access to Facebook users is not yet fully known. This Article can not be a complete chapter in the corporate governance challenge of managing, monitoring, and oversight of individual privacy issues and content integrity on prominent social media platforms. The full extent of Facebook’s experience is just now becoming known, with new revelations yet to come. All interested parties: Facebook users; shareholders; the board of directors at Facebook; government regulatory agencies such as the Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC); and Congress must now figure out what has transpired and what to do about it. These and other revelations have resulted in a crisis for Facebook. American democracy has been and continues to be under attack. This article contributes to the literature by providing background and an account of what is known to date and posits recommendations for corrective action.
2018年11月,《纽约时报》在头版刊登了一篇报道,描述了Facebook如何通过利用全球仇恨运动和宣传战,隐瞒和披露与俄罗斯有关的活动和剥削,导致克里姆林宫主导了2016年和2018年美国大选的中断。到2018年12月中旬,很明显,俄罗斯在2016年美国大选前所做的努力比之前想象的要广泛得多。为美国参议院情报特别委员会(SSCI)进行的两项研究:(1)牛津大学的计算宣传项目和Graphika;以及(2)新知识,提供有关俄罗斯互联网研究机构(IRA)针对美国公民的影响行动的大量新信息和分析。到2019年初,很明显,一些有影响力和成功的高增长社交媒体平台被民族国家用于宣传目的。两年多前,美国情报界曾指责俄罗斯干预2016年美国总统选举。在本文付印之际,外国势力在多大程度上自愿或不知情地使用了著名的社交媒体平台,调查仍在继续。《纽约时报》的报道表明,直到2017年9月6日举行的Facebook董事会会议上,董事会审计委员会主席厄斯金·鲍尔斯(Erskin Bowles)才意识到Facebook内部已经意识到,俄罗斯特工在多大程度上利用Facebook和Instagram平台在美国开展影响力活动。当这篇文章付印时,广告收入的诱惑在多大程度上蒙蔽了Facebook,使其忽视了向Facebook用户提供出价最高的访问权限的同谋作用,这一点尚不完全清楚。本文不能完整地描述公司治理面临的挑战,即管理、监控和监督知名社交媒体平台上的个人隐私问题和内容完整性。Facebook的全部经历才刚刚为人所知,新的爆料还在后头。所有相关方:Facebook用户;股东;Facebook的董事会;联邦贸易委员会(FTC)和证券交易委员会(SEC)等政府监管机构;国会现在必须弄清楚发生了什么,该怎么做。这些和其他的爆料给Facebook带来了危机。美国的民主一直并将继续受到攻击。本文通过提供背景和迄今已知的情况,并提出纠正措施的建议,为文献做出了贡献。
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引用次数: 5
Airport Security: Over-Reaching New Heights 机场安全:超越新高度
Pub Date : 2018-04-20 DOI: 10.5195/TLP.2018.217
C. Antolak
The tragedy that occurred on September 11, 2001 changed airline security forever. Post 9/11, Congress gave the Department of Homeland Security vast power over passengers. This article seeks to examine whether the new airline security procedures are overly invasive, legal, or even effective. If the current system is ineffective or unconstitutional, an alternative must be sought. The Supreme Court has held that searches are required to be no more extensive or invasive than needed to protect security. This article posits that if new airline security measures are not conducted in a manner that respects the privacy and constitutional rights of passengers, they must be replaced with an alternative, such as behavioral profiling. In modern society, it is paramount that we heed the warning of Benjamin Franklin, "those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety."
2001年9月11日发生的悲剧永远地改变了航空安全。911事件后,国会赋予国土安全部对乘客的巨大权力。本文旨在研究新的航空公司安全程序是否过于侵入性,是否合法,甚至是否有效。如果现行制度无效或违宪,就必须寻求替代办法。最高法院认为,搜查的范围和侵入性不得超过保护安全的需要。这篇文章认为,如果新的航空安全措施没有以尊重乘客隐私和宪法权利的方式实施,就必须用行为分析等替代措施来取代。在现代社会,我们必须听从本杰明·富兰克林(Benjamin Franklin)的警告,“那些为了换取一点暂时的安全而放弃基本自由的人,既不值得自由,也不值得安全。”
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引用次数: 0
Tribal Sovereign Immunity as a Defense in Overcoming IPR Challenges of Brand Name Pharmaceutical Patent Validity at PTAB – Effects on the Industry 部落主权豁免作为克服PTAB品牌药品专利有效性知识产权挑战的防御——对行业的影响
Pub Date : 2018-03-28 DOI: 10.5195/TLP.2018.216
Elana Williams
Tribal sovereignty has been recognized by the American government since the establishment of the United States and tribal sovereign immunity has been a part of American jurisprudence for over a century. Tribal sovereign immunity continues to play an important role in modern times, especially in the last few years with the rise of inter partes review (IPR) proceedings stemming from the America Invents Act of 2011. IPR proceedings are filed with the United States Patent and Trademark Office (USPTO) and heard by the Patent Trial and Appeal Board (PTAB) as an alternative to or in conjunction with traditional patent litigation in the U.S. Court of Appeals for the Federal Circuit. Therefore, patent owners may have to defend their patents both at PTAB and in federal court. PTAB has recently granted its first motion to consider the issue of tribal sovereign immunity as it relates to patents covering the branded drug Restasis®. This case involves two giants of the pharmaceutical industry: Allergan PLC (Allergan), a brand name drug manufacturer who holds the Restasis® patents, and Mylan N.V. (Mylan), a generic pharmaceutical company.
自美国建国以来,部落主权就得到了美国政府的承认,部落主权豁免在一个多世纪以来一直是美国法理的一部分。部落主权豁免在现代继续发挥重要作用,特别是在最近几年,因2011年《美国发明法》而兴起的当事方间审查程序。知识产权诉讼向美国专利商标局(USPTO)提交,并由专利审判和上诉委员会(PTAB)审理,作为美国联邦巡回上诉法院传统专利诉讼的替代或结合。因此,专利所有人可能不得不在PTAB和联邦法院为他们的专利辩护。PTAB最近批准了其第一项动议,考虑涉及品牌药物Restasis®专利的部落主权豁免问题。该案件涉及制药行业的两大巨头:拥有Restasis®专利的品牌药物制造商Allergan PLC (Allergan)和仿制药公司Mylan N.V. (Mylan)。
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引用次数: 1
Pioneers in Computerized Legal Research: The Story of the Pittsburgh System 计算机化法律研究的先驱:匹兹堡系统的故事
Pub Date : 2018-02-07 DOI: 10.5195/TLP.2018.212
Tina B Hershey, D. Burke
The potential effects of law are far-reaching and research is ongoing regarding the intersection of law and technology. Given the widespread availability of online legal documents today, the laws of various jurisdictions can be reviewed and researched in their full text form. However, in the not-so-distant past, this task was overwhelmingly more difficult. Many jurisdictions, unable to keep pace with the increased volume of statutes, regulations, and judicial decisions, compiled indexes of legal information rather than catalogs of full documents. These indexes made comparisons between jurisdictions difficult and left researchers unsure of whether they had captured all relevant information. However, in the middle of the 20th century, researchers began to tap into the potential of computers in relation to information retrieval. Much of the early pioneering work in the legal field was conducted by researchers at the University of Pittsburgh, who developed the “Pittsburgh System” that was a precursor to the computerized legal research tools that are ubiquitous today.
法律的潜在影响是深远的,关于法律与技术交叉的研究正在进行中。鉴于今天网上法律文件的广泛可用性,可以以全文形式审查和研究各个司法管辖区的法律。然而,在不太遥远的过去,这项任务要困难得多。许多司法管辖区无法跟上越来越多的法规、规章和司法判决的步伐,于是编制了法律信息索引,而不是完整文件的目录。这些指数使得不同司法管辖区之间的比较变得困难,也让研究人员无法确定他们是否掌握了所有相关信息。然而,在20世纪中期,研究人员开始挖掘计算机在信息检索方面的潜力。法律领域的许多早期开创性工作都是由匹兹堡大学的研究人员进行的,他们开发了“匹兹堡系统”,这是今天无处不在的计算机化法律研究工具的先驱。
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引用次数: 0
The Antisocial Effects of Social Media and How Colleges and Universities Can Manage Related Litigation Risks 社交媒体的反社会效应及高校如何管理相关诉讼风险
Pub Date : 2017-12-19 DOI: 10.5195/TLP.2018.206
Gregory L. Demers, J. Piereson, Mark A. Cianci, Peter L. Welsh
Rapid advancements in information technology have transformed day-to-day university operations and, in doing so, have altered the landscape of risk management. Authors Gregory L. Demers, J. William Piereson, Mark A. Cianci, and Peter L. Welsh provide an overview of some of the most significant social-media-related risks faced by colleges and universities, before considering ways to mitigate these risks through a broad insurance coverage plan. The article explains how, given the relative novelty of this field, the coverage afforded by insurance policies inevitably will vary, often significantly, from insurer to insurer.
信息技术的快速发展已经改变了大学的日常运作,并由此改变了风险管理的格局。作者Gregory L. Demers, J. William Piereson, Mark a . Cianci和Peter L. Welsh概述了高校面临的一些最重要的与社交媒体相关的风险,然后考虑如何通过广泛的保险覆盖计划来减轻这些风险。鉴于这一领域的相对新颖性,本文解释了保险政策所提供的覆盖范围如何不可避免地会因保险公司而异,通常是显著的差异。
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引用次数: 0
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Pittsburgh Journal of Technology Law & Policy
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