Law, Borders, and Speech: Human Rights

Without a doubt, human rights law provides an important framework for the discussion of cross-border speech regulation. The International Covenant on Civil and Political Rights (ICCPR) in Article 19 clearly states the right to express opinions and ideas “regardless of frontiers” and the Internet is a particularly relevant tool and platform for the exercise of this right, both in its individual and social dimensions. There was a common underlying basic agreement among the different panelists as to the need to include a human rights perspective in content removal discussions, whether judicial, regulatory or legislative.

Law, Borders, and Speech: Data Protection and the Right to Be Forgotten

This panel addressed the right to be forgotten (RTBF) from a global perspective, presenting points of view from relevant stakeholders and academic researchers from different regions. As established in the Court of Justice of the European Union’s 2014 Google Spain case, this is a right under data protection law for individuals to request that search engines de-list specified results appearing in response to a search for the individual’s name.[1] While search engines may decline to de-list results based on public interest considerations, the RTBF is still far broader than de-listing or removal rights in many countries, including the United States. This is especially the case since de-listing can also be requested for information that lawfully published online.

Law, Borders, and Speech: Intellectual Property

The topic of this panel was cross-border issues in the online enforcement of intellectual property rights. The speakers brought a range of perspectives from the movie industry (Ben Sheffner), the public interest sector (Corynne McSherry), academia (Annemarie Bridy), and the tech industry (Alex Feerst).

The panel began with a discussion of Equustek Solutions Inc. v. Jack, a case then pending before the Supreme Court of Canada.[1] In the case, Google challenged a lower court’s injunction requiring it to remove search results not only from its Canadian services, but globally. The sites belonged to the defendants, who were accused of trade secret misappropriation and trademark infringement. The defendants fled Canada during the course of the litigation, which led the court to strike their defenses as a sanction. The trial court ultimately issued an order enjoining the defendants from using Equustek’s trade secrets and from selling infringing inventory. The defendants predictably disregarded the court’s order. They continued to sell products from various websites they controlled from indeterminate locations. Equustek asked Google to globally remove search results for the defendants’ websites, which Google refused to do. Google agreed only to remove infringing URLs from results on its Canadian search service at Equustek argued before the trial court that Google should be compelled to do more.

Law, Borders, and Speech: The Big Picture

David G. Post, reviewing what the original Law and Borders paper got right (and what it got wrong), noted that the central dilemma it had identified—the conflict between an a-territorial global network and an international legal system with territoriality at its core—had certainly proved to be a profoundly challenging one. He suggested that the failure (thus far) to make much headway on these problems of “governance on the Internet” (in Bertrand de la Chapelle’s phrase) may be pushing these problems “upward,” to the institutions (e.g., ICANN) concerned with “governance of the Internet,” as they face increasing pressure to leverage their control over critical infrastructure to exercise greater control over online content and conduct.

Law, Borders, and Speech: Introducing Our Proceedings Volume

The essay below serves as introduction to the Stanford Center for Internet and Society's Law, Borders, and Speech Conference Proceedings Volume. The conference brought together experts from around the world to discuss conflicting national laws governing online speech -- and how courts, Internet platforms, and public interest advocates should respond to increasing demands for these laws to be enforced on the global Internet.

Tool Without a Handle: Privacy and Moral Hazard

Discussions of privacy tend to focus on the value of privacy. This post agrees that privacy has value in practical terms, as an important moral principle, and for its contribution to human flourishing. At the same time, these observations are incomplete. Privacy, like security and transparency, involves trade-offs. Indeed, it involves trade-offs with precisely those other qualities – security and transparency in particular. Privacy, for example, protects data that would reveal fraud, lies, and other wrongdoing.

Law, Borders, and Speech: Law Enforcement Access to User Data

The Law, Borders, and Speech conference at Stanford’s Center for Internet and Society asked the important question: Which countries’ laws and values will govern Internet users’ online behavior, including their free expression rights? The conference used the landmark article written in 1996 by David G. Post and David R. Johnson to examine whether twenty years on their conclusions still held true. Post and Johnson had concluded that “[t]he rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior; (2) the effects of online behavior on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.” They proposed that national law must be reconciled with self-regulatory processes emerging from the network itself.

New Article in the Connecticut Law Review

My article Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis?, 49 Conn. L. Rev. 1393 (2017), has recently been published by the Connecticut Law Review. You can download it from SSRN here. I contributed this piece as part of my participation in the law review's 2017 Symposium last January.


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