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The Cyberlaw Clinic and attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief to the United States Court of Appeals for the Ninth Circuit this week on behalf of civil liberties advocacy organization, Restore the Fourth, in the case, Rodriguez v. Swartz.  As set out in more detail in the brief and summarized in  a statement by Restore the Fourth, the case concerns the 2012 shooting of a Mexican teenager by United States Border Patrol agent Lonnie Swartz.  The victim — 16-year-old Jose Antonio Elena Rodriguez — was in Nogales, Mexico; the agent fired shots from the U.S. side of the border, through a border fence, killing Rodriguez as he walked home following a basketball game.

The civil suit brought by the victim’s mother against the agent raises questions about whether the agent can claim qualified immunity and, in turn, whether the killing is subject to the Fourth Amendment’s requirements regarding the reasonableness of searches and seizures.  The case has potentially far-reaching implications regarding the scope and continuing viability of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) — in which the United States Supreme Court addressed the applicability of the Fourth Amendment to a search of a Mexican citizen’s home in Mexico — and more broadly about the extraterritorial reach of the Fourth Amendment’s protections.

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On April 1st, the Copyright Office closed the initial comment period for a public study undertaken to evaluate the impact and effectiveness of the Digital Millennium Copyright Act (“DMCA”) safe harbor provisions, embodied in Section 512 of the United States Copyright Act. On April 7th, the filed comments were released online.

Commenters submitted a total of 90,967 comments in connection with the study. The Cyberlaw Clinic filed one of those comments on behalf of Berkman Center for Internet & Society Project Coordinator Adam Holland, who manages the Center’s Lumen project (formerly known as Chilling Effects), and Harvard Law School Clinical Professor (and Cyberlaw Clinic Managing Director) Christopher Bavitz, who serves as Lumen’s principal investigator at Berkman. As described herein, the comment submitted by the Clinic advanced the twin propositions that:  (a) data is crucial to informing reasoned policy debates, including debates about policies that govern intermediary liability and obligations to police content online; and (b) transparency is intrinsically related to accountability, oversight, and process and is generally good for the public at large in a society that values free expression.

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The Cyberlaw Clinic has filed a comment (PDF) before the Copyright Office as part of the office’s Section 1201 Study, which looks into copyright’s anticircumvention law, embodied in Section 1201 of the United States Copyright Act. Anticircumvention law prohibits bypassing or evading “technical protection measures” on copyrighted works — such as CSS encryption on DVDs or digital locks present on many eBooks — even if one’s use of the underlying work otherwise does not infringe copyright. As required in the statute, the Copyright Office holds hearings every three years to consider requests for temporary exemptions when the law works to prohibit noninfringing uses of others’ works. The Clinic’s comment in the 1201 proceeding addresses deficiencies present in the Office’s approach to this triennial rulemaking, and recommends a set of solutions.

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Harvard Law School students Olga Slobodyanyuk and Leo Angelakos of the Cyberlaw Clinic recently teamed up with the Berkman Center‘s Youth and Media team to develop a set of resources regarding the legal doctrine of fair use. Olga and Leo helped to develop three new sets of resources for students and teachers. Together, they produced a podcast in collaboration with Radio Berkman; a guide for teachers (including a number of education-specific resources); and an infographic to explain fair use doctrine in a visual way. You can find out more about the resources here.

The release of these resources coincided with Fair Use/Fair Dealing Week, an annual event meant to celebrate, promote, and explain the doctrine of fair use. This year, it took place from February 22nd to February 26th. Fair Use Week represents a concerted effort among a variety of entities—ranging from individuals to large institutions—to release and share information about fair use. The resources developed by the Youth and Media project and the Clinic will help grow Berkman’s Digital Literacy Resource Platform, an evolving collection of tools about online safety, privacy, creative expression, and information quality that can help users navigate connected learning environments and the digital world.

Olga and Leo report that they had a great experience working on the project:

We were super excited to work on this project! Creating the podcast on fair use was a lot of fun. In the end, working together with Radio Berkman, we created a quick and conversational piece that covers the essentials of fair use and provides some examples of how the doctrine is applied.

The infographic was interesting in that it aimed to portray legal doctrine in a visual manner. For the resource guide, we focused on materials that would be most helpful to teachers. We included comprehensive guidelines, FAQs, infographics, short videos, and databases of legal cases.

As clinical students, this was a unique project. Instead of producing a legal research memo, we were asked to creatively describe the doctrine in an interesting and digestible way, accessible to a broad audience. We look forward to future collaborations between the Clinic and Andres and Paulina from the Youth and Media team.

Fair Use Week “is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.” The Clinic is pleased to have played a role in promoting the broader goals of Fair Use Week and supporting the DLRP.

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Last week, the Harvard Law School Cyberlaw Clinic, on behalf of a group of law scholars, filed an amicus brief (pdf) in the United States District Court for the District of Columbia in American Educational Resource Association (AERA) v. Public.Resource.org, Case No. 1:14-cv-00857-TSC (D.D.C.). In January, amici joined a similar brief in the case, ASTM v. Public Resource, Case No. 1:13-cv-01215-EGS (D.D.C.), which is pending before the same court. As in the previous case, the plaintiffs in this case are organizations that develop standards (SDOs). They include AERA, the American Psychological Association, Inc., and the National Council on Measurement in Education, Inc. Plaintiffs allege copyright and trademark infringement by defendant Public Resource, a non-profit organization dedicated to making government information accessible to the public, for publishing on its website privately developed standards that have been incorporated into federal law.

This latest brief advances many of the same legal arguments made in the previous brief with reference to model codes and applies them to privately developed standards. Amici argue that privately developed standards that are later incorporated into law are not, and should not be, copyrightable. Ourearlier blog post on the previous brief summarizes those arguments in detail.

Spring 2016 Cyberlaw Clinic students Allison Kempf and Ben Murray took the lead on this brief, working closely with Chris Bavitz and Andy Sellars, and drawing on the earlier work of Clinic students Joseph Posimato, Michael Gocksch, and Miranda Means. Attorney Cathy Gellis again assisted with the filing.

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In November 2015, the Cyberlaw Clinic supported the Electronic Privacy Information Center in submitting comments to the Federal Aviation Administration regarding a proposed registration regime for operators of Unmanned Aircraft Systems (“UAS”), commonly known as drones.  Fall 2015 Clinic students Katherine Kwong and Sophia Choi contributed to EPIC’s comments, in which EPIC expressed general support for a drone registration requirement but raised concerns about the inclusion of personal information about drone operators in a registration database.  

In its filing, EPIC noted the risks that UAS (particularly smaller drones) might be used to conduct surveillance.  But, EPIC expressed privacy concerns regarding the maintenance of a database containing personal information of registrants and specifically noted the privacy interests of drone hobbyists (who are more likely than commercial operators to register using home addresses).

The FAA’s Interim Final Rule on this subject, issued on December 16, 2015, cited EPIC’s comments extensively.  The Rule highlighted EPIC’s concerns about surveillance and interest in ensuring registration requirements were tailored to meet the goals of ensuring “individuals and title search companies to determine the legal ownership of an aircraft” and providing “aircraft owners and operators information about potential mechanical defects or unsafe conditions of their aircraft in the form of airworthiness directives.”

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The Cyberlaw Clinic filed an amicus brief (PDF) in the Supreme Judicial Court of Massachusetts on behalf of the American Civil Liberties Union of Massachusetts (ACLUM) in Commonwealth v. White, SJC-11917. This is the third case in as many years in which Massachusetts’s highest court has sought the input of amici to help clarify when law enforcement may glean information from a cell phone to advance a criminal investigation.

At issue in White is the question of what evidence is required to establish probable cause to seize a cell phone without a warrant – especially in view of an allegation that the cell phone contains a remote wipe feature, raising the specter of its contents being erased if the police don’t immediately seize it. The case also considers the length of time after which the warrantless seizure of a phone becomes constitutionally unreasonable due to the police’s continuing failure to obtain a warrant.

ACLUM argues that the ubiquity of cell phones, their powerful functionality, and their capacity to store enormous amounts of private information are reasons that they merit the very strongest privacy protections as enshrined in the Bill of Rights and the Massachusetts Declaration of Rights.

Applying these protections, the brief argues first that the enormous capability of cell phones to store materials of evidentiary value does not automatically establish probable cause to search a criminal suspect’s cell phone, anymore than the enormity of what can be stored in a criminal suspect’s house automatically gives rise to probable cause in that situation. Rather, law enforcement must show some specific and objective indication that the suspect ever stored incriminating evidence on it or used it in relation to the crime to establish probable cause.

Second, the brief argues that the “remote wipe” capabilities built into all modern cell phones does not automatically establish an exigent circumstance allowing law enforcement to seize cell phones without a warrant. Absent some some specific, non-speculative evidence that the feature will actually and imminently be deployed, warrantless seizures of cell phones are every bit as unreasonable as every other kind of warrantless seizure.

Third, the brief argues that it is constitutionally unreasonable for law enforcement to hold on to a suspect’s cell phone for nearly ten weeks before applying for a warrant to search it, in view of the strong privacy interest that individuals have in their cell phones given the vast amounts of information that can be stored on one.

The White appeal follows closely on recent SJC and Supreme Court decisions reaffirming individuals’ privacy interests in their cell phones. These cases include the SJC’s recent decisions in Commonwealth v. Estabrook (where the Cyberlaw Clinic filed an amicus brief on behalf of ACLUM and the EFF), andCommonwealth v. Augustine (where ACLUM represented the defendant and the Clinic filed an amicus brief on behalf of the EFF).

The case is scheduled for argument on Tuesday, December 8th at the John Adams Courthouse in Boston. Special thanks go to HLS Cyberlaw Clinic students Kenneth Monroe (HLS JD ’16) and Brian Pilchik (HLS JD ’17), who worked closely with Vivek Krishnamurthy, Andy Sellars, and the amici to prepare and file the brief.

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We are happy to report that the Library of Congress has approved of exemptions to the DMCA’s anti-circumvention provisions in order to protect independent medical device safety and security research and patient access to data. This announcement comes after a year of litigating this issue before the Copyright Office. You can review all of our prior coverage and the filings of the case at our page about the 2015 Anticircumvention Rulemaking. I wanted to take time to review the decision, and reflect briefly on the process of the DMCA rulemaking.

Background

The Cyberlaw Clinic represented a coalition of medical device researchers – Hugo Campos, Jay Radcliffe, Karen Sandler, and Ben West – who study the safety, security, and effectiveness of implanted medical devices. Some of our clients study this by analyzing the software of medical devices for vulnerabilities or flaws, and others look specifically to how patients can protect themselves by getting more timely access to medical data. Through a petition, initial comment, reply comment, and two subsequent letters, the Clinic articulated why such research is vital to ensuring patient health and safety, does not seriously risk piracy or infringement, and should be allowed to continue as medical device manufacturers begin to employ encryption and other “technological protection measures” that implicate anticircumvention law.

At the recommendation of the Copyright Office and the Department of Commerce’s National Telecommunications and Information Administration (NTIA), the Library decided to split our proposed exemption into two pieces – those accessing software to do security testing, and patients accessing their own data – and consider each separately. In the end they granted both parts of the exemption, though not without some important caveats and qualifications.

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In a strong affirmation of the privacy interests of cellphone users, the Massachusetts Supreme Judicial Court (SJC) ruled unanimously earlier this week that law enforcement agencies in the Commonwealth must obtain a warrant to access anything more than a minimal amount of the cell-site location information (CSLI) that telecommunications companies collect about their users. The Cyberlaw Clinic filed an amicus brief in Commonwealth v. Estabrook on behalf of the American Civil Liberties Union of Massachusetts (ACLUM) and the Electronic Frontier Foundation (EFF) in support of privacy protection for CSLI.

As explained in a previous blog post on this case:

Cellular service providers must know where their subscribers are at any given time to provide them with service. Providers therefore collect vast quantities of location information, tracking the movements of customers wherever they go. Last year, in Augustine, 467 Mass. 230 (2014), the Supreme Judicial Court ruled that, in general, the police must get a search warrant to obtain location information from a cellular service provider. The ruling left open the possibility, however, that the police might be able to obtain a “brief period” of “six hours or less” of location information without a warrant but, instead, with a court order that is considerably easier to obtain.

At issue in Estabrook was whether law enforcement could obtain two weeks of CSLI with a mere court order, and yet take advantage of the Augustine exception, since it would only use six hours of this data in prosecuting the defendant. In rejecting this proposition, the SJC agreed with the position advocated by amici that the government cannot remedy the constitutional violation caused by conducting an unlawful, warrantless search by promising after the fact to use only what it might have lawfully obtained under the “six-hour” exception.

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The Massachusetts Supreme Judicial Court handed a big win to free speech advocates today in its decision in Commonwealth v. Lucas, siding with defendant Melissa Lucas and declaring Massachusetts General Laws Chapter 56, Section 42 (“Section 42”) unconstitutional.  The Cyberlaw Clinic filed an amicus brief (PDF) in the case, in support of defendant Lucas, on behalf of the New England First Amendment Coalition, Boston Globe Media Partners, LLC (owners of the Boston Globe), Hearst Television, Inc. (owners of WCVB-TV Channel 5 in Boston), the Massachusetts Newspaper Publishers Association, the New England Newspaper and Press Association, Inc., and the New England Society of Newspaper Editors. The SJC’s reasoning followed many of the arguments advanced by our amicus coalition.

Continue reading the full story here.

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Over the past several months the Cyberlaw Clinic has been working with medical device researchers Hugo Campos, Jay Radcliffe, Karen Sandler, and Ben West, in a proceeding before the Copyright Office regarding the anticircumvention laws created in the Digital Millennium Copyright Act. Here’s what we’ve been doing, and why we’re doing it.

The Clinic has written about this proceeding twice before, but as a quick review: our clients each study the safety, security, and effectiveness of medical devices. Some look at the devices from a system design perspective, analyzing the hardware and software of the devices for misconfigurations or vulnerabilities. Others look at the devices as they are applied to a particular patient’s care, and help patients retrieve important information off the devices that the device otherwise would not share, or would only make available through periodic checkups with doctors once every several months. Their research has helped patients and doctors better tailor care, the public understand the nature of medical device risks, and regulatory agencies like FDA improve government oversight of devices.

Continue reading the full story here.

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The Cyberlaw Clinic is pleased to report that earlier today the Department of Justice’s Office of the Inspector General released its internal audit of the FBI’s use of Section 215 of the Patriot Act from 2007–2009. Release of the Inspector General report comes soon after the Clinic prepared a FOIA request seeking a copy of the report, on behalf of the American Civil Liberties Union’s National Security Project.

Section 215 of the Patriot Act allows the government to obtain orders from the Foreign Intelligence Surveillance Court to obtain “tangible things” as part of investigations into foreign intelligence or terrorism. This section has come under intense scrutiny after the revelation by Edward Snowden that the government was using Section 215 to gather records related to every call made on networks operated by Verizon Business Network Services, as well as those of other phone companies. Section 215 is set to expire on June 1, and is currently the subject of vigorous national debate as Congress contemplates whether to reauthorize this surveillance authority.

The report released today is the third addressing the FBI’s use of Section 215, after Congress mandated the DOJ to such periodic reviews under the USA PATRIOT Improvement and Reauthorization Act of 2005. Earlier reports reviewed the FBI’s use from 2002 through 2005 and for 2006. As the FOIA request prepared by the Clinic notes, this report “will no doubt be one of the most important public documents used in this debate; it is vitally needed to inform the ongoing public debate about whether the provision should be reenacted, and with what amendments.”

Clinic students Naomi Gilens (’16) and Gabrielle Hodgson (’15) worked on this request, along with Clinical Fellow Andy Sellars, Clinical Instructor Vivek Krishnamurthy, and Patrick Toomey, a staff attorney at the ACLU’s National Security Project.

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The Cyberlaw Clinic filed an amicus brief (PDF) this week in the Supreme Judicial Court of Massachusetts on behalf of the American Civil Liberties Union of Massachusetts (ACLUM) and the Electronic Frontier Foundation (EFF) in Commonwealth v. Estabrook, SJC–11833. The case concerns location privacy and cell phone technology — specifically, whether law enforcement can gather a large amount of cell phone location information if it only plans to use a small fraction of that information in a prosecution. This is the third brief the Clinic has filed on location privacy issues in Massachusetts, including briefs for EFF in Commonwealth v. Augustine and Commonwealth v. Rousseau in 2013.

Cellular service providers must know where their subscribers are at any given time to provide them with service. Providers therefore collect vast quantities of location information, tracking the movements of customers wherever they go. Last year, in Augustine, 467 Mass. 230 (2014), the Supreme Judicial Court ruled that, in general, the police must get a search warrant to obtain location information from a cellular service provider. The ruling left open the possibility, however, that the police might be able to obtain a “brief period” of location information without a warrant but, instead, with a court order that is considerably easier to obtain.

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We at the Berkman Center for Internet & Society — and, in particular, here at the Cyberlaw Clinic — are thrilled to share today’s announcement from our friends and frequent collaborators at the MIT Media Lab of the Lab’s new Digital Currency Initiative. MIT has been a leader on both the study and implementation of bitcoin-based systems, with the MIT Bitcoin Clubbringing students and others together to think about the development of bitcoin-related platforms and the MIT Bitcoin Project putting virtual currency in the virtual hands of students in an effort to generate interest in emerging payment systems. We are ecstatic to see the Media Lab put its weight behind research on and facilitation of blockchain-based technologies and welcome the effort to formalize its role as a neutral hub and convening force on the topic of digital currency.

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WEROBOT 2015, “Legal and Ethical Issues in the Use of Telepresence Robots: Best Practices and Toolkit” | University of Washington School of Law, William H. Gates Hall | April 10, 2015, 3:15 pm – 4:15 pm | Cyberlaw Clinic Managing Director Chris Bavitz and spring 2015 Clinic students Cecillia Xie and Jack Xu, along with Chelsea Barabas of the MIT Center for Civic Media, will present a working draft of their toolkit on legal and ethical concerns regarding the use of telepresence robots to the 2015 WeRobot conference in Seattle. The team will speak with discussant Laurel D. Riek of University of Notre Dame about the project. Telepresence robots allow users to attend meetings and events to interact with participants remotely and have significant applications in the work, school, and conference settings. The Clinic has been working with Chelsea, together with Berkman Fellow and MIT Media Lab PhD student J. Nathan Matias, to maximize opportunities and navigate legal and regulatory challenges associated with telepresence robotics.

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The Clinic is pleased to have played a role in preparing a far-reaching new report released by the Global Network of Internet and Society Research Centers and the Berkman Center for Internet & Society at Harvard University, addressing questions about intermediary liability around the world.  The report is a first output of a larger initiative on the governance of online intermediaries.  It consists of:  (a) a case study series exploring online intermediary liability frameworks and issues in Brazil, the European Union, India, South Korea, the United States, Thailand, Turkey, and Vietnam; and (b) a synthesis paper that seeks to distill key observations and provide a high-level analysis of some of the structural elements that characterize varying governance frameworks, with a focus on intermediary liability regimes and their evolution.  Clinical Fellow Andy Sellars helped to support the project overall, and he — along with the Clinic’s Managing Director Chris Bavitz and two summer 2014 Cyberlaw Clinic interns, Nick DeCoster and Michael Lambert – helped to craft the US case study.

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On Friday, the Cyberlaw Clinic filed a comment on behalf of a coalition of medical device researchers in the Library of Congress’s triennial rulemaking regarding the Digital Millennium Copyright Act’s anticircumvention provisions. As we noted in the blog post from when the Clinic filed an initial petition in this rulemaking, every three years the Librarian of Congress, at the recommendation of the Register of Copyrights, considers exemptions to the general law against circumventing technological measures that prevent the public from accessing copyrighted works. These exemptions are granted in cases where the law against circumventing technological measures around copyrighted works unduly prevents the public from making lawful uses of those works. (For more on anti-circumvention law, see the Chilling Effects FAQ.)

The Clinic filed a public comment on behalf of researchers Hugo Campos, Jay Radcliffe, Karen Sandler, and Benjamin West, who each study the security and effectiveness of implantable medical devices, including pacemakers, cardioverter defibrillators, insulin pumps, and continuous glucose monitors. This research sometimes requires researchers to reverse engineer these devices in order to study their source code and outputs. The petition was filed to make sure these researchers are allowed to do this even when the device manufacturers encrypt, password-protect, or require proprietary tools in order to access this information.

Continue reading the article here.

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Overview

The Cyberlaw Clinic began in 1999, with the Berkman Center for Internet & Society’s announcement of a new “Clinical Research Program.” As the program heads into its sixteenth year, we at the Clinic have the opportunity to reflect on the events of 2014­. From student work and public events, to changes among the Clinic staff, to new modes of teaching and updates to structure of the program itself, we wanted to share some highlights of the past calendar year as we look ahead to the rest of 2015.

Student Participation and Enrollment

In 2014, the Clinic continued its pattern of growth from previous years, with our largest-ever semester of Clinic enrollment this fall. Across the winter, spring, and fall terms of 2014, the Clinic enrolled more than sixty students. In addition, five full-time interns supported the Clinic’s work during the summer months and participated in the Berkman Center’s vibrant summer internship program.

Continue reading the full story here.