Yesterday, the Library of Congress handed a significant win to digital preservationists. On October 26, 2018, the Library of Congress granted an exemption to the DMCA’s anti-circumvention provision for libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired software for the purposes of preserving software and materials that depend on it. This exemption will significantly reduce the legal risk involved in preserving software that is no longer available for purchase. The new exemptions will go into effect on October 28, 2018. The announcement came after a year of rulemaking proceedings before the Copyright Office, and the involvement of several semesters of Clinic students, including Evelyn Chang, Anderson Grossman, Jillian Goodman, Erika Herrera, Austin Bohn, and Erin Thomas. You can read our previous blog posts about the Clinic’s involvement here and here.
The Cyberlaw Clinic recently filed an amicus brief (pdf) in the United States Court of Appeals for the Ninth Circuit, on behalf of Engine Advocacy, a non-profit organization that advocates on behalf of the startup community, and Santa Clara University School of Law Professor Eric Goldman. The case involved a dispute between Airbnb, Inc. and a residential leasing company, Aimco, Inc., about the proper application of 47 U.S.C. § 230, a section of the Communications Decency Act that immunizes platforms against liability arising out of third-party speech.
The Clinic has had the honor of working over the past year, along with our friends at the Electronic Frontier Foundation, to support Jeremy Rubin in his efforts to register the domain name, fucknazis.us. Jeremy created his website and registered the domain back in 2017 and began offering a “virtual lapel pin” that allowed Ethereum (a popular digital currency) users to support opposition to anti-semitic and white supremacist conduct in the United States around the time of the tragic events in Charlottesville, Virginia last summer. The domain name registrar initially allowed Jeremy’s registration, then abruptly terminated it (citing the use of the word “fuck” in the name). We are pleased to note that—after a lot of back and forth (and significant patience on Jeremy’s part)—the domain name is now (back) in Jeremy’s hands and the site is now (back) up and running. We are also pleased that this incident prompted re-evaluation of a policy and practice of the United States Department of Commerce with respect to the .us top level domain (or “TLD”) that clearly violated the First Amendment.
The Cyberlaw Clinic is pleased to welcome back returning 2Ls and 3Ls and welcome new 1Ls and LLMs to Cambridge for the start of the 2018-19 academic year! We hope that everyone had a restful and reinvigorating summer. As we ramp up for the fall semester, we offer some announcements about the program and thoughts on the coming year.
The Cyberlaw Clinic filed an amicus brief (pdf) this week in the United States Court of Appeals for the District of Columbia Circuit, on behalf of Engine Advocacy, supporting petitioners in a set of consolidated cases challenging the Federal Communications Commissions’ rollback of Obama-era net neutrality protections. Engine—a non-profit organization that advocates on behalf of the startup community—previously filed comments and reply comments with the FCC in the runup to the 2018 “Restoring Internet Freedom Order” (pdf) that is the subject of these proceedings. The brief highlighted Engine’s prior comments and noted instances where the FCC mischaracterized, failed to consider, or improperly discounted the interests of the startup community and the harms to innovators and venture investors of eliminating clear ex ante rules against throttling, blocking, and paid prioritization. Engine has its own post about the substance of the brief, here.
The Ninth Circuit issued an important decision last week in Rodriguez v. Swartz, allowing a Mexican mother to sue a United States government official over a cross-border shooting. The Court held that the defendant — Border Patrol agent Lonnie Swartz — violated the Fourth Amendment rights of 16-year-old Jose Antonio Elena Rodriguez when Swartz shot and killed Rodriguez. The shooting took place while Rodriguez was in Nogales, Mexico and Swartz was on the US side of the border. The Cyberlaw Clinic and attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief in the case on behalf of civil liberties advocacy organization, Restore the Fourth. Although the case did not directly concern cyber- or tech-related issues, the court’s reasoning may have long-term implications with respect to government activities in a wide range of contexts where actions occur on US soil but have extraterritorial effects.
We previously reported about the Clinic’s amicus advocacy in a pair of cases concerning copyrights in legal standards and model codes incorporated into law. We are pleased to report that the United States Court of Appeals for the District of Columbia Circuit issued a ruling yesterday in favor of Public.Resource.Org, the organization that we supported (on behalf of two different groups of amici) in the district and circuit courts.
This month, Pakistan’s Ministry of Information Technology and Telecommunication released a draft Personal Data Protection Bill for public comment. The bill has a wide scope, encompassing at a basic level the commercial usage of data from which an individual is identifiable, and creates a key role for user consent. While not without areas for possible improvement, the bill represents a positive step for Pakistan’s internet-connected populace. With support from Cyberlaw Clinic, the Digital Rights Foundation (DRF), a Pakistani NGO that works in support of human rights and democratic processes online, submitted a policy brief to the Ministry of Information Technology and Telecommunication while the initial drafting of the bill was underway. DRF founder Nighat Dad said, “Working with the Harvard Cyberlaw Clinic was a unique experience, both personally and professionally… I believe that such platforms add indispensable value to the global advocacy endeavours and tremendously help in successful attempts at making the internet more inclusive and approachable.”
The Harvard Law Bulletin‘s Summer 2018 issue highlights the work of the Ethics and Governance of Artificial Intelligence Initiative, a project based jointly at the Berkman Klein Center for Internet & Society and the MIT Media Lab. Members of the Cyberlaw Clinic team have been actively involved in many aspects of the Initiative, including Chris Bavitz and Kira Hessekiel (who have spearheaded the Center’s work on government use of algorithmic tools); Mason Kortz and Jess Fjeld (who have worked on cutting-edge issues around the intersection of artificial intelligence and the arts); Kendra Albert (who has played the role of product counsel on a number of innovative AI-related projects); and Vivek Krishnamurthy and Hannah Hilligoss (who have led the charge on the Center’s ongoing work examining the human rights implications of AI). This work has also become integrated into the Clinic docket — students have assisted with an open letter sent to members of the MA legislature about pre-trial risk assessments, advised the developer of an art-generating AI system in license negotiations, and provided legal support for teams in the BKC / MITML “Assembly” program.
The United States Supreme Court has issued its long-awaited ruling in Carpenter v. United States, holding that the government must get a warrant before obtaining cell site location information from an individual’s cell phone provider. The decision marks a significant development in Fourth Amendment jurisprudence in the digital age, and the Court commented extensively on the unique nature of cell phones and cell phone location records. The Court’s ruling has important implications for the future of the third-party doctrine, as the Court held, “the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.”